Article 57(1) of the 1977 Additional Protocol I states: “In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.”

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 57(1). Article 57 was adopted by 90 votes in favour, none against and 4 abstentions. CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 211.

Additional Protocol II

Article 13(1) of the 1977 Additional Protocol II provides: “The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.”

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977, Article 13(1). Article 13 was adopted by consensus. CDDH, Official Records, Vol. VII, CDDH/SR.52, 6 June 1977, p. 134.

Additional Protocol II (draft)

Article 24(2) of the draft Additional Protocol II submitted by the ICRC to the CDDH provided: “Constant care shall be taken, when conducting military operations, to spare the civilian population, civilians and civilian objects. This rule shall, in particular, apply to the planning, deciding or launching of an attack.”

Eventually, however, it was deleted in the plenary, because it failed to obtain the necessary two-thirds majority (36 in favour, 19 against and 36 abstentions).

CDDH, Official Records, Vol. VII, CDDH/SR.52, 6 June 1977, p. 135.

Convention on Cluster Munitions

The preamble to the Convention on Cluster Munitions (2008) states that “in the conduct of military operations constant care shall be taken to spare the civilian population, civilians and civilian objects”.

Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia

Paragraph 6 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that hostilities be conducted in accordance with Article 57 of the 1977 Additional Protocol I.

Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 6.

Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina

Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that hostilities be conducted in accordance with Article 57 of the 1977 Additional Protocol I.

Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.5.

Australia’s Defence Force Manual (1994) states: “In the conduct of military operations, constant care must be taken to spare the civilian population and civilian objects to the maximum extent possible.”

Canada’s LOAC Manual (1999) states: “Civilians are entitled to protection from the dangers arising from military operations. In conducting operations care should always be taken to spare civilians and civilian objects.”

Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4-2, § 15.

Canada

Canada’s LOAC Manual (2001) states in its chapter on targeting: “Civilians are entitled to protection from the dangers arising from military operations. In conducting operations care should always be taken to spare civilians and civilian objects.”

Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 411.

Central African Republic

The Central African Republic’s Instructor’s Manual (1999) states in Volume 3 (Instruction for non-commissioned officers studying for the level 1 and 2 certificates and for future officers of the criminal police): “The main aim of the precautions taken when planning military operations is to avoid civilian losses and damage … Precautions must be taken with respect to on-going military operations and to the movements and halts of the armed forces.”

Persons who plan or direct an attack against the enemy evidently wish to achieve their objective and to reduce to the minimum the risks to their own forces. The attacker must at the same time constantly strive to spare civilians and their property. The law contains clear instructions on the manner in which attacks must be planned and executed.

In Book IV (Instruction of heads of division and company commanders), the Teaching Manual provides:

The protection of civilians and of civilian objects is a fundamental principle of the LOAC. Parties to a conflict must distinguish between civilians and combatants as well as between civilian objects and military objectives. Civilians are entitled to protection against the dangers resulting from military operations. In the conduct of operations, one must always take care to spare civilians and civilian objects.

Ecuador’s Naval Manual (1989) states: “All reasonable precautions must be taken to ensure that only military objectives are targeted so that civilians and civilian objects are spared as much as possible from the ravages of war”.

Germany’s Soldiers’ Manual (2006) states: “When attacking a military objective, all necessary precautions shall be taken to spare as far as possible the civilian population located in the area or in the immediate vicinity of the object.”

The Military Manual (2005) of the Netherlands states: “Belligerents must take every precaution in their actions against military targets to minimize victims among non-combatants (primarily civilians).”

A distinction must be made between precautions when attacking and precautions against the consequences of attacks (therefore “attacks” mean combat actions as a whole). In general, the rule is that, when carrying out military operations, constant care must be taken to spare the civilian population, individual civilians and civilian objects.

Nigeria’s Military Manual (1994) lists as one of the basic principles in the conduct of operations, every commander’s duty “to spare the civilian population, civilian persons and civilian objects”. The manual adds: “When planning action that could endanger civilian persons and objects therefore, care and precaution must be emphasised and exercised in the conduct of the war.”

(8) … [T]he commander assigned to the mission must take the precautions required to ensure respect for international humanitarian law.

(9) Before taking a final decision, the commander must assess the options resulting from his analysis.

He must then assess the following factors:

(a) obstacles to the mission;

(b) precautions required under international humanitarian law;

(c) the estimated cost of the planned operation (for example, expected casualties among his own troops and civilian casualties and material damage in relation to the military advantage that can be expected to be gained).

The commander takes a decision based on his final assessment of these factors and then chooses the solution that poses the least danger to civilians and civilian property (for example, more movement and manoeuvring and less fire, action that involves less risk for the civilian environment) and is in compliance with international humanitarian law.

(12) When the tactical situation permits, commanders should provide the civilian authorities with information on the likely course of military operations and the risks they could pose for the civilian population and civilian property.

(13) Such information often includes recommendations for specific action and/or behaviour (for example, recommendations to take shelter or stay away from specific areas or routes used by the armed forces).

8. General Rules for the Correct Use of Force towards Mission Accomplishment

…

d. Commanders must be aware of, and sensitive to, the points stated in the definition of strategic implications of tactical operations. In particular, military operations shall be conducted in a manner that shall entail:

1) The least possible impact of such operations on the larger community of non-combatants, especially on their livelihood and normal conduct of everyday life;

2) Minimum evacuation from homes and/or areas of food production.

Philippines, AFP Standing Rules of Engagement, Armed Forces of the Philippines, General Headquarters, Office of the Chief of Staff, 1 December 2005, § 8(d)(1)–(2).

Romania

Romania’s Soldiers’ Manual (1991) states that combatants must “spare civilians and their property”.

In the conduct of military operations, constant care must be taken, to the extent possible, to spare the civilian population, civilians and civilian objects. …

The term “to the extent possible” means that the precautions should be practicable or practically possible, taking into account all circumstances prevailing at the time, including humanitarian and military considerations.

Sweden’s IHL Manual (1991) states that the precautions in attack “have come about only to protect the civilian population, individual civilians and civilian property in connection with military operations, and particularly when planning, deciding upon and executing attacks”.

Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.2.1.5, p. 68.

Switzerland

Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states: “The precautionary measures thus aim to spare as far as possible the population and civilian objects during acts of war.”

Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance for the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, § 171. The German language version notes: “The precautionary measures thus command that in the conduct of any military operations constant care is taken to spare the civilian population and civilian objects as far as possible” [“Die Vorsichtsmassnahmen gebieten es somit, bei jeglichen Kriegshandlungen immer darauf zu achten, dass die Zivilbevölkerung und zivile Objekte nach Möglichkeit verschont bleiben.”]

Togo

Togo’s Military Manual (1996) states: “Constant care shall be taken to spare the civilian population and civilian objects.”

The UK LOAC Manual (2004) states: “In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.”

United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.32.

United States of America

The US Air Force Pamphlet (1976) states: “In conducting military operations, constant care must be taken to spare the civilian population, civilians, and civilian objects.”

United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 5-3(c)(1)(a).

United States of America

The US Naval Handbook (1995) states: “All reasonable precautions must be taken to ensure that only military objectives are targeted so that civilians and civilian objects are spared as much as possible from the ravages of war.”

United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 8.1.

United States of America

The US Naval Handbook (2007) states: “The law of targeting, therefore, requires that all reasonable precautions must be taken to ensure that only military objectives are targeted so that noncombatants, civilians, and civilian objects are spared as much as possible from the ravages of war.”

United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 8.1.

Denmark’s Military Criminal Code (1973), as amended in 1978, provides:

Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].

Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).

Denmark’s Military Criminal Code (2005) provides:

Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].

Denmark, Military Criminal Code, 2005, § 36(2).

Ireland

Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1977 Additional Protocol I, including violations of Article 57(1), and any “contravention” of the 1977 Additional Protocol II, including violations of Article 13(1), are punishable offences.

Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment.

In 2010, in the Couso case, which concerned the killing of a Spanish journalist in Baghdad on 8 April 2003 by troops of the United States of America, the Criminal Chamber of Spain’s Supreme Court noted:

[A]s alleged [by the appellants], the appealed order [presently under review] seems to place an emphasis, in order to terminate the proceedings, on the second section of Article 611(1) of the PC [Penal Code (1995)]…when it is clear that on the last occasion the examining magistrate also based his proceedings on the first section referring to those who carry out or order an indiscriminate or excessive attack … [T]he latter should be evaluated by the Court, as was expressed in the dissenting opinion, according to the principles of International Humanitarian and customary law, and not in an anticipated manner. As a result the appealed order lacks the necessary reasoning, as it ignores the substantial grounds [raised] in the second indictment order …

In addition, the appealed order … reaches a conclusion concerning the termination of the proceedings in accordance with Article 637(2) LECr [Law on Criminal Prosecution of 1881] (as the facts did not constitute an offence) solely based on the allegation that there was a mistake by the acting [US] armed forces.

In this way, the order insists on the “credibility that there was a visual mistake concerning the presence of a sniper … in the hotel, [and that this was] the reason that the decision to attack the building was [taken], in terms of prevention, in order to secure the area”.

The appealed decision declared the termination of the proceedings … as it considered that the “facts [of] the case did not constitute an offence” … [H]owever, the proceedings carried out do not permit sharing the conclusions of the first instance tribunal; rather, the facts [denounced] merit being subsumed under the cited penal provisions and the aforementioned norms of International Humanitarian Law.

In deciding upon a breach of the law due to the failure to apply the national and international provisions on the principle of precaution, the Court held:

1. … [T]here is no indication that the hotel was being used as a “shield” to commit an action against the accused, as was claimed by the Prosecution Service at one point and accepted by the appealed order. There is no trace – as opposed to what is stated in the order – that there was a visual mistake concerning the presence of a sniper … in the hotel. … [There is also no evidence] that the [US] tank was fired upon in the 35 minutes prior [to the attack on the hotel] or that there was anti-vehicle artillery capable of reaching it from the hotel, taking into account that the tank was more than 1500 metres away and that an RPG grenade launcher does not reach more than 650 metres. …

2. Due to their similarity with this matter, we must refer to what has been said in relation to the fifth and sixth issues raised by the previous appellants concerning the existence of rational indications of the commission of an offence which violate the ius in bello, namely the norms of International Humanitarian Law that must be observed by belligerents.

The Court upheld the appeal against the order of 23 October 2009 by the Third Section of the Criminal Chamber of the Spanish National Court, which declared the termination of the proceedings, and held that “the proceedings must continue, and the outstanding preparatory enquiries must be undertaken, as well as any others arising from the clarification of the events under investigation.”

The Report on the Practice of Algeria states that during the war of independence the Armée de Libération Nationale (ALN) always tried to avoid hostilities in towns in order to spare needless casualties among the civilian population.

In 2009, in a ministerial statement before the House of Representatives on the situation in Sri Lanka, Australia’s Minister for Foreign Affairs stated: “Australia calls on all those involved in the fighting to make protecting civilians an absolute priority … All parties must ensure that civilians can leave the conflict zone safely.”

In 1992, the Presidency of the Republika Srpska of Bosnia and Herzegovina made an urgent appeal “to spare [the] civilian population from all attacks”.

Bosnia and Herzegovina, Republika Srpska, Appeal of the Presidency concerning the International Committee of the Red Cross Operations, Pale, 7 June 1992.

Canada

In 2012, in a statement on the strengthening of the coordination of humanitarian and disaster relief assistance of the United Nations, the permanent representative of Canada stated: “We urge all parties to the conflict [in Syria] to fully respect their obligations, especially their obligations to take constant care to spare the civilian population from the effects of hostilities.”

Canada, Statement by the permanent representative of Canada on the strengthening of the coordination of humanitarian and disaster relief assistance of the United Nations, 13 December 2012.

Indonesia

On the basis of an interview with a senior officer of the armed forces, the Report on the Practice of Indonesia states that the Indonesian armed forces normally observe the precautions listed in Article 57 of the 1977 Additional Protocol I.

Report on the Practice of Indonesia, 1997, Interview with a senior officer of the Indonesian armed forces, Chapter 1.6.

Israel

In 2008, in a background paper on Israel’s operations in Gaza, Israel’s Ministry of Foreign Affairs stated:

In practice, two key questions arise in relation to the legitimacy of the planning … of an operation: 1) Is the target itself a legitimate military objective? and 2) Even if the target is in itself legitimate, is there likely to be disproportionate injury and damage to the civilian population and civilian property.

In July 2010, in a second update of its July 2009 report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009, Israel’s Ministry of Foreign Affairs stated:

150. The IDF [Israel Defense Forces] has adopted important new written procedures and doctrine designed to enhance the protection of civilians in urban warfare, including by further emphasizing that the protection of civilians is an integral part of a commander’s mission. In addition, the procedures require increased attention to civilian matters in operational planning. Although protection of civilians during military operations has long been part of IDF training and doctrine, the new procedures mandate additional comprehensive protection. These revised procedures stem from general understandings and lessons learned both in Gaza and other military operations conducted by Israel in recent years.

151. The new procedures and doctrine also specify steps to better insulate the civilian population from combat operations and to limit unnecessary damage to civilian property and infrastructure, and require integration of civilian interests into the planning of combat operations. This involves advance research into and the precise identification and marking of existing infrastructure, including that pertaining to water, food and power supplies, sewage, health services, educational institutions, religious sites, economic sites, factories, stores, communications and media, and other sensitive sites as well as cultural institutions.

152. Furthermore, the new written procedures mandate the planning for a number of additional provisions aimed at safeguarding the civilian population. This includes: safe havens for civilians to take refuge; evacuation routes for civilians to safely escape combat areas; medical treatment for civilians; methods for effectively communicating with and instructing the population; and provisions for humanitarian access during curfews, closures and limitations on movement. Finally, the new written procedures require the assignment of a Humanitarian Affairs Officer integrated in each combat unit beginning at the battalion level and up, with responsibilities for advising the commanding officer and educating the soldiers with regard to: the protection of civilians; civilian property and infrastructure; the planning of humanitarian assistance; the coordination of humanitarian movement; and the documentation of humanitarian safeguards employed by the IDF.

153. While the majority of these issues were already addressed in various operational orders and guidelines in existence prior to the Gaza Operation, the new revised procedures are important because they are comprehensive and applicable to all stages of military operations, including the crucial stage of planning.

In 1971, during a debate in the Third Committee of the UN General Assembly concerning respect for human rights in armed conflicts, Liberia stated that it “agreed wholeheartedly with the principle that, in the conduct of military operations, every effort should be made to spare civilian populations … as affirmed in [principle 3] of General Assembly resolution 2675 (XXV)”.

Liberia, Statement before the Third Committee of the UN General Assembly, UN Doc. A/C.3/SR.1890, 1 December 1971, § 8.

Malaysia

According to the Report on the Practice of Malaysia, the obligation to take constant care to spare the civilian population and civilian objects in the conduct of military operations forms part of Malaysian practice.

Report on the Practice of Malaysia, 1997, Answers to additional questions on Chapter 1.6.

Netherlands

According to the Government of the Netherlands, commanders have to take all the precautionary measures required by Article 57 of the 1977 Additional Protocol I when carrying out an attack.

In 2006, in reply to a written question from the Parliament concerning measures taken to prevent civilian casualties when attacking targets from the air, the Minister of Defence of the Netherlands stated: “In practice, Dutch fighter pilots will not commence with the attack on a target, if the possibility exists that civilians are in the vicinity of that target.”

In 2007, in reply to a written question from the Parliament regarding civilian casualties in Afghanistan, the Ministers of Defence and Foreign Affairs of the Netherlands stated:

The Netherlands takes every measure to prevent civilian casualties. Every time the Dutch air force supports OEF-units, the Dutch Rules of Engagement apply. These Rules state that the crews of F-16’s, before commencing with the attack, at all times need to positively identify the designated target, identify whether unarmed civilians are in the vicinity of the target and collateral damage can be avoided. If these preconditions cannot be met, then the mission should be aborted. Until now, this has occurred a number of times.

In 2011, in its report to the Human Rights Council, Somalia stated: “The Government forces are also bound to respect customary IHL rules relating to the prohibited methods and means of warfare including … precautions in attack”.

In 2011, during the consideration of Somalia’s report to the Human Rights Council, a statement of the delegation of Somalia was summarized by the Council as follows: “The principle … of precaution must be respected in the conduct of military operations.”

Somalia, Statement by the Delegation of Somalia before the Human Rights Council during the consideration of the report of Somalia, published in the Report of the Working Group of the Human Rights Council on the Universal Periodic Review, 11 July 2011, UN Doc. A/HRC/18/6, § 68.

Somalia

In 2011, in its comments on the concluding observations of the Human Rights Council concerning Somalia’s report, Somalia’s Transitional Federal Government stated: “The Government is taking all necessary measures to protect the lives of civilians.”

Somalia, Comments by the Transitional Federal Government of Somalia on the concluding observations of the Human Rights Council concerning the report of Somalia, submitted 21 September 2011, § 98.76.

South Africa

In its consideration of the legality of the 1978 attack by the South African Defence Forces on the South Western Africa People’s Organisation’s (SWAPO) base/refugee camp at Kassinga in Angola, the South African Truth and Reconciliation Commission stated: “International humanitarian law stipulates that a distinction must at all times be made between persons taking part in hostilities and civilians, with the latter being spared as much as possible.”

Humanitarian law is based on a number of fundamental principles. They are apparent in current treaties and customary law and express the core of humanitarian law. They concern the principles of distinction, proportionality and precaution, the prohibition on causing superfluous damage and unnecessary suffering and the principle of non-discrimination as well as the so called Martens Clause.

Sweden, Government Bill 2013/14:146 on criminal liability for genocide, crimes against humanity and war crimes, 20 February 2014, p. 33.

Switzerland

Switzerland’s ABC of International Humanitarian Law (2009) states:

Precaution

Although military operations can be legitimately carried out against Military objectives only, this does not prevent civilians or civilian objects from being harmed. In order to protect them, international humanitarian law requires that, in the conduct of military operations, constant care shall be taken to spare civilians and civilian objects. This is what is called the principle of precaution.

In 2009, in a statement before the UN Security Council during an open debate on the protection of civilians in armed conflict, the permanent representative of Switzerland stated:

The current situation in Gaza cries out to us the importance of the issue we are discussing today. The main victims of the Israeli-Palestinian conflict are civilians. Switzerland is deeply shocked by the very high number of civilians that have been killed or wounded in this conflict, and in particular the high number of child victims. …

…

Switzerland therefore reiterates its call for … strict compliance with international law by all parties to the conflict. This includes in particular the obligation to respect the principles of distinction, proportionality and precaution.

Switzerland, Statement by the permanent representative of Switzerland before the UN Security Council on the protection of civilians in armed conflict, 14 January 2009, p. 5.

Switzerland

In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated:

Military responses to guerrilla tactics must be in conformity with the requirements of international humanitarian law. There is a consensus today that the majority of the provisions of [the 1977] Additional Protocol I apply equally to non-international armed conflicts, through customary law. … Even if combatants blend in with the civilian population and use it as a human shield in violation of the law, measures should be taken in order to carry out attacks in a targeted manner and to spare civilians as much as feasible (for example by warning them in advance).

During the meeting, the Head of the FDFA [Federal Department of Foreign Affairs] expressed his deep concern at the escalation of violence throughout the region. It is crucial that all measures of precaution be taken so as to spare the civilian population from the effects of the hostilities being conducted in one of the most densely populated zones in the world.

In 2013, in answer to an interpellation in Parliament regarding the use of drones, Switzerland’s Federal Council stated:

In armed conflicts, strikes carried out with armed drones must respect the rules of the conduct of hostilities as stipulated by international humanitarian law, including the principles of distinction, proportionality and precaution, and must therefore not be directed against civilians or civilian objects. For each strike, it is thus necessary to verify that these principles were respected.

Switzerland, Answer by the Federal Council to interpellation 13.3245 in Parliament regarding the use of drones, 29 May 2013.

Switzerland

In 2013, in a statement before the UN Security Council during a debate on the protection of civilians in armed conflict made on behalf of the group of friends on the protection of civilians, Switzerland’s chargé d’affaires stated: “Parties to conflict too often fail to comply with their obligations under international humanitarian law, which requires all parties to conflict to spare the civilian population from the effects of hostilities.”

Switzerland, Statement by the chargé d’affaires of Switzerland before the UN Security Council during a debate on the protection of civilians in armed conflict made on behalf of the Group of Friends on the Protection of Civilians, namely Australia, Austria, Belgium, Brazil, France, Germany, Italy, Japan, Liechtenstein, Norway, Portugal, Switzerland, the United Kingdom and Uruguay, 19 August 2013.

Switzerland

In 2013, in a statement at the Meeting of the High Contracting Parties to the 1980 Convention on Certain Conventional Weapons, the permanent representative of Switzerland stated:

The community of States cannot remain indifferent to the human suffering caused by armed conflicts. It was in direct response to this fundamental concern that the CCW [1980 Convention on Certain Conventional Weapons] and its protocols were adopted, with a view to prohibiting or limiting the use of certain specific types of weapons known to inflict superfluous injury or unnecessary suffering, or to strike indiscriminately.

In this regard, Switzerland is deeply concerned by the alleged use of weapons in Syria falling within the ambit of the CCW and its respective protocols, such as the alleged use of anti-personnel mines as well as the alleged use of incendiary weapons in populated areas causing severe human suffering. We call upon all parties to the conflict to comply with their obligations under international law, in particular the principles of distinction, precaution, and proportionality.

Switzerland, Statement by the permanent representative of Switzerland at the Meeting of the High Contracting Parties to the Convention on Certain Conventional Weapons, 14 November 2013.

Syrian Arab Republic

The Report on the Practice of the Syrian Arab Republic asserts that the Syrian Arab Republic considers Article 57 of the 1977 Additional Protocol I to be part of customary international law.

Report on the Practice of the Syrian Arab Republic, 1997, Chapter 1.6.

United Kingdom of Great Britain and Northern Ireland

In 1938, during a debate in the House of Commons, the UK Prime Minister listed among rules of international law applicable to warfare on land, at sea and from the air the rule that “reasonable care must be taken in attacking these military objectives so that by carelessness a civilian population in the neighbourhood is not bombed”.

The UK Government Strategy on the Protection of Civilians in Armed Conflict (2010) states: “IHL requires parties to a conflict to respect and protect civilians. … They must take constant care to spare civilians and civilian objects from the effects of hostilities.”

United Kingdom, Foreign and Commonwealth Office, Government Strategy on the Protection of Civilians in Armed Conflict, March 2010, p. 4.

United States of America

In 1972, the General Counsel of the US Department of Defense stated that the United States regarded the principle contained in UN General Assembly Resolution 2444 (XXIII) of 1968 that “a distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the civilians be spared as much as possible … as declaratory of existing customary international law”.

United States, Letter from J. Fred Buzhardt, General Counsel of the Department of Defense, to Senator Edward Kennedy, Chairman of the Subcommittee on Refugees of the Committee on the Judiciary, 22 September 1972, AJIL, Vol. 67, 1973, p. 122.

United States of America

According to the Report on US Practice, it is the opinio juris of the United States that a “distinction must be made between persons taking part in the hostilities and members of the civilian population to the effect that the civilians be spared as much as possible”.

Report on US Practice, 1997, Chapter 1.4.

Zimbabwe

The Report on the Practice of Zimbabwe states that the provisions of Article 57 of the 1977 Additional Protocol I would be regarded as customary by Zimbabwe because of its adoption of the Geneva Conventions Amendment Act which incorporates the 1977 Additional Protocol I into Zimbabwe’s law and practice.

UN General Assembly Resolution 2444 (XXIII), adopted in 1968, affirmed Resolution XXVIII of the 20th International Conference of the Red Cross in 1965 and the basic humanitarian principle applicable in all armed conflicts laid down therein that “distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible”.

UN General Assembly Resolution 2675 (XXV), adopted in 1970, states: “In the conduct of military operations, every effort should be made to spare civilian populations from the ravages of war, and all necessary precautions should be taken to avoid injury, loss or damage to civilian populations.”

The 20th International Conference of the Red Cross in 1965 adopted a resolution on protection of civilian populations against the dangers of indiscriminate warfare in which it solemnly declared:

All Governments and other authorities responsible for action in armed conflicts should conform at least to the following principles: … that distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible.

20th International Conference of the Red Cross, Vienna, 2–9 October 1965, Res. XXVIII.

In its judgment in the Kupreškić case in 2000, the ICTY Trial Chamber stated that Article 57 of the 1977 Additional Protocol I was now part of customary international law, not only because it specified and fleshed out general pre-existing norms, but also because it did not appear to be contested by any State, including those who had not ratified the Protocol. The Trial Chamber also noted that in the case of attacks on military objectives causing damage to civilians, “international law contains a general principle prescribing that reasonable care must be taken in attacking military objectives so that civilians are not needlessly injured through carelessness”.

ICTY, Kupreškićcase, Judgment, 14 January 2000, § 524.

With reference to the Martens Clause, the Chamber held:

The prescriptions of … [Article 57 of the 1977 Additional Protocol I] (and of the corresponding customary rules) must be interpreted so as to construe as narrowly as possible the discretionary power to attack belligerents and, by the same token, so as to expand the protection accorded to civilians.

ICTY, Kupreškić case, Judgment, 14 January 2000, § 525.

Eritrea-Ethiopia Claims Commission

In its Western Front, Aerial Bombardment and Related Claims (Eritrea’s Claim) partial award in 2005, the Eritrea-Ethiopia Claims Commission, in considering the necessity of precautions in attack directed at protecting civilians, stated:

… The Commission also recognizes that not all of the obligations of Section III of Part III of [1949] Geneva Convention IV (the section that deals with occupied territories) can reasonably be applied to an armed force anticipating combat and present in an area for only a few days. Nevertheless, a State is obligated by the remainder of that Convention and by customary international humanitarian law to take appropriate measures to protect enemy civilians and civilian property present within areas under the control of its armed forces.

To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “Constant care shall be taken to spare the civilian population, civilian persons and civilian objects.”

Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 388.

ICRC

In an appeal issued in October 1973, the ICRC urged all the belligerents in the conflict in the Middle East (Egypt, Iraq, Israel and the Syrian Arab Republic) to observe forthwith, in particular, the provisions of, inter alia, Article 50(1) of the draft Additional Protocol I, which stated that “constant care shall be taken, when conducting military operations, to spare the civilian population, civilians and civilian objects”. All governments concerned replied favourably.

The ICRC Commentary on the Additional Protocols considers that the obligation to take constant care to spare the civilian population, civilians and civilian objects

appropriately supplements the basic rule [of distinction] … It is quite clear that by respecting this obligation the Parties to the conflict will spare the civilian population, civilians and civilian objects … This is only an enunciation of a general principle which is already recognized in customary law.

On several occasions, the ICRC has reminded the parties to the conflicts in Nagorno-Karabakh, Afghanistan and Chechnya of their obligation to take all possible measures to spare the civilian population and civilian facilities.

In a press release issued in 1994 in the context of the conflict in Yemen, the ICRC called upon all combatants “to spare the civilian population”.

ICRC, Press Release No. 1773, Fighting in Yemen, 9 May 1994.

ICRC

In a communication to the press issued in 1999 concerning NATO’s intervention in the Federal Republic of Yugoslavia, the ICRC stated: “Those conducting hostilities must take all necessary precautions to spare civilians.”

In 1999, in a statement following the start of NATO operations against the Federal Republic of Yugoslavia, the ICRC noted:

Thousands of Serb and Romany families also face an uncertain future, having fled their homes in Kosovo out of fear of airstrikes or retaliation. Among the essential principles of international humanitarian law are the requirements that civilians be spared violence.

In a communication to the press in 2000, the ICRC appealed to Israel and Lebanon to ensure that in the conduct of military operations constant care was taken to spare the civilian population, civilians and civilian objects.

ICRC, Communication to the Press No. 00/10, Lebanon and Northern Israel: ICRC appeals for civilians to be spared and respect for civilian infrastructure, 5 May 2000.

ICRC

In a communication to the press in 2000, during the conflict between Ethiopia and Eritrea, the ICRC stated: “The belligerents are also duty bound to take all necessary steps to safeguard the civilian population from the dangers of military operations.”

In a communication to the press in 2000, the ICRC reminded all those involved in the violence in the Near East that “armed and security forces must spare and protect all civilians who are not or are no longer taking part in the clashes, in particular children, women and the elderly”.

ICRC, Communication to the Press No. 00/42, ICRC Appeal to All Involved in Violence in the Near East, 21 November 2000.

If for military reasons immediate action [against naval or military objects located within an undefended town or port] is necessary, and no delay can be allowed the enemy, … [the commander of a naval force] shall take all due measures in order that the town may suffer as little harm as possible.

Hague Convention (IX) concerning Bombardment by Naval Forces in Time of War, The Hague, 18 October 1907, Article 2(3).

Additional Protocol I

Article 57(4) of the 1977 Additional Protocol I provides:

In the conduct of military operations at sea or in the air, each Party to the conflict shall, in conformity with its rights and duties under the rules of international law applicable in armed conflict, take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects.

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 57(4). Article 57 was adopted by 90 votes in favour, none against and 4 abstentions. CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 211.

Additional Protocol II

Article 13(1) of the 1977 Additional Protocol II provides: “The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.”

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977, Article 13(1). Article 13 was adopted by consensus. CDDH,
Official Records, Vol. VII, CDDH/SR.52, 6 June 1977, p. 134.

All possible precautions shall be taken, both in the choice of the weapons and methods to be used, and in the carrying out of an attack, to ensure that no losses or damage are caused to the civilian population in the vicinity of the objective, or to its dwellings, or that such losses or damage are at least reduced to a minimum.

Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, drafted by the International Committee of the Red Cross, September 1956, submitted to governments for their consideration on behalf of the 19th International Conference of the Red Cross, New Delhi, 28 October–7 November, Res. XIII, Article 9.

Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia

Paragraph 6 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that hostilities be conducted in accordance with Article 57 of the 1977 Additional Protocol I.

Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 6.

Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina

Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that hostilities be conducted in accordance with Article 57 of the 1977 Additional Protocol I.

Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.5.

CSCE Code of Conduct

Paragraph 36 of the 1994 CSCE Code of Conduct states: “The armed forces will take due care to avoid injury to civilians or their property.”

The Code of Conduct on Politico-Military Aspects of Security, adopted at the 91st Plenary Meeting of the Special Committee of the CSCE Forum for Security Co-operation, Budapest, 3 December 1994, incorporated as Decision IV in the CSCE Budapest Document, Towards a Genuine Partnership in a New Era, Doc. RC/1/95, corrected version of 21 December 1994, § 36.

UN Secretary-General’s Bulletin

Section 5.3 of the 1999 UN Secretary-General’s Bulletin states: “The United Nations force shall take all feasible precautions to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians or damage to civilian property.”

All reasonable precautions must be taken to avoid injury, loss or damage to civilians and civilian objects and locations. It is therefore important to obtain accurate intelligence before mounting an attack. While LOAC recognises that civilian casualties are unavoidable at times, a failure to take all reasonable precautions to minimise such damage may lead to a breach of those laws. The same principles apply to the risk of damage or injury to any other protected persons, places and objects.

5.39 Commanders must take all practicable precautions, taking into account military and humanitarian considerations, to keep civilian casualties and damage to a minimum consistent with mission accomplishment …

…

5.53 … All reasonable precautions must be taken to avoid injury, loss or damage to civilians and civilian objects and locations. It is therefore important to obtain accurate intelligence before mounting an attack. While the LOAC recognises that civilian casualties are unavoidable at times, a failure to take all reasonable precautions to minimise such damage may lead to a breach of those laws. The same principles apply to the risk of damage or injury to any other protected persons, places and objects.

Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 5.39 and 5.53.

The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).

Belgium

Belgium’s Law of War Manual (1983) provides: “Everything possible must be done to avoid incidental damage to civilian objects and loss of civilian life.”

Benin’s Military Manual (1995) states: “Precautions must be taken when planning military operations in order to avoid civilian losses and damage to civilian objects or to minimize such losses and damage when they are unavoidable.”

Burundi’s Regulations on International Humanitarian Law (2007) states: “Before launching an attack, precautions must be taken to avoid civilian losses and damage that would be excessive in relation to the targeted military objective.”

The Regulations also states: “The planning of military action must include precautionary measures, aimed at avoiding civilian losses [or] … , in case they are inevitable, aimed at minimizing them as much as possible.”

Canada’s LOAC Manual (2001) states in its chapter on air warfare: “All reasonable precautions should be taken during the conduct of military operations in the air to avoid losses of civilian lives and damage to civilian objects.”

Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 711.3.

Whenever military force is used, civilians who are not directly involved in the conflict may be hurt and their property may be damaged. Indeed, the inaccuracy of weapons systems, the deployment of opposing forces in civilian areas and the general “fog of war” increases the likelihood of injury being unintentionally inflicted on civilians. CF operations must be conducted in such a way that damage to civilians and their property is minimized.

The Central African Republic’s Instructor’s Manual (1999) states in Volume 3 (Instruction for non-commissioned officers studying for the level 1 and 2 certificates and for future officers of the criminal police): “The main aim of the precautions taken when planning military operations is to avoid civilian losses and damage and, if these are inevitable, to minimize them as far as possible.”

In Volume 3, the manual further states: “When a choice is possible between several defence positions for obtaining an equivalent military advantage, the position to be selected must be that which would present the least danger to civilian persons and objects.”

- carefully consider the tactics, weapon systems and munitions to be employed. He will take all precautions possible to avoid or at least to limit as much as possible the losses or damage inflicted on civilians or on civilian objects.

Ecuador’s Naval Manual (1989) requires naval commanders to “take all reasonable precautions, taking into account military and humanitarian considerations, to keep civilian casualties and damage to the minimum consistent with mission accomplishment and the security of the force”.

France’s LOAC Teaching Note (1989) provides: “All precautions must be taken in order to avoid or minimize incidental injury and collateral damage.”

France, Fiche didactique relative au droit des conflits armés, Directive of the Ministry of Defence, 4 January 2000, annexed to the Directive No. 147 of the Ministry of Defence of 4 January 2000, p. 2.

Germany

Germany’s Military Manual (1992) states: “When launching an attack on a military objective, all feasible precautions shall be taken to avoiding, and in any event to minimizing, incidental losses of civilian life, injury to civilians and damage to civilian objects.”

The Hellenic Navy’s International Law Manual (1995) provides: “Means and methods employed in the particular naval operation should be of such nature so as not to inflict damages to non-military targets or restrict collateral damages to the lowest possible level.”

The Military Manual (2005) of the Netherlands states: “All practically feasible precautionary measures must also be taken when choosing means and methods, in order to avoid collateral damage to cultural property and in any case to limit it, as far as possible.”

In its chapter on non-international armed conflict, the manual states:

1044. In selecting targets and/or preparing or executing attacks, care must be taken to direct such attacks only against military objectives, and to limit that collateral damage as far as possible. If necessary, attacks must be cancelled, halted or suspended. If circumstances permit, a warning should be given before an attack that might also affect the civilian population.

1045. Participants in an internal armed conflict should also take all possible measures to protect the civilian population against the consequences of attack.

1046. The above means that participants must ask themselves where they may and may not position fighters or equipment. They should make sure that they are not attacking civilians or civilian objects, but military objectives. They should not attack if the collateral damage is excessive in relation to the expected military advantage.

1219. Rules to minimize collateral damage can also be found in the RoE [Rules of Engagement]. However broadly the RoE are drafted, each participating country is also bound by the international conventions which it has ratified …

…

1221. Operations must be carried out … without disruption to the civilian population and civilian objects. The population is expected to cooperate with or consent to the operation, and not to resist the activities of the peace force. This means that the planning and execution of operations and actions must pay careful attention to the manner in which the peace force fulfils its mission and what degree of force is used. Damage to infrastructure and civilian casualties must be avoided or, in any case, kept to a minimum. Damage to civilian objects must in no case be excessive in relation to the purpose to be achieved.

An attack on a military objective may not be considered indiscriminate, disproportionate or otherwise unlawful simply because there is a risk of collateral injury to civilians or civilian objects. Civilian casualties or damage incidental to attacks on legitimate military objectives are therefore not unlawful. Such injuries and damage, however, should not be disproportionate (that is, clearly excessive in relation to the concrete and direct military advantage anticipated from the attack) and every feasible precaution must be taken to minimise them.

Every effort must be made at all times to protect the civilian population and individual civilians and preserve civilian property.

This essentially involves avoiding or at least minimizing civilian casualties and damage to civilian property, taking into account populated areas, possible locations for shelters and the need to move important civilian authorities.

(8) … The commander assigned to the mission must take the precautions required to ensure respect for International Humanitarian Law.

(9) Before taking the final decision, the commander must assess the options resulting from his analysis.

He must then balance the following factors:

(a) Obstacles to the mission.

(b) Precautions required under International Humanitarian Law.

(c) The estimated cost of the planned operation (for example, expected casualties amongst his own armed forces and civilian casualties and material damage in relation to the military advantage that can be expected to be gained).

The commander shall take the decision which results in the least danger for civilians and civilian objects (for example, more movement and manoeuvring and less fire, action that involves less risk for the civilian environment) and is in compliance with International Humanitarian Law.

When the tactical situation permits, commanders shall provide civilian authorities with information on the likely course of military operations and the resulting risks for the civilian population and civilian objects. Such information shall at least include recommendations for specific action and/or behaviour (for example, to take shelter or stay away from certain areas or routes used by the Armed Forces).

(2) Take all feasible precautions in the selection of weapons and tactics in order to avoid or at any rate minimize the number of deaths and injuries amongst the civilian population and damage to civilian objects.

One must always endeavour to protect the civilian population and individual civilians, and to preserve civilian property. This essentially involves avoiding and at least minimizing the number of civilian victims and damage to civilian objects, taking into account populated areas, possible locations for shelters, opportunities of seeking shelter, and the large-scale displacement of civilian persons.

The manual also provides: “The obligation to take precautionary action falls primarily to the civilian authorities of the attacking State. Yet it only arises at the time of planning and resource allocation, for example regarding the placement of military installations.”

The Joint Circular on Adherence to IHL and Human Rights (1991) of the Philippines states:

Actions during security/police operations will be guided by these rules [of behavior for soldiers/police during security/police operations] in order … to reduce the destruction that may be inflicted against lives and properties … Members of the AFP [Armed Forces of the Philippines] and PNP [Philippine National Police] shall exercise the utmost restraint and caution in the use of armed force to implement policies … Members of the AFP and PNP shall inhibit themselves from unnecessary military/police actions that could cause destruction to private and public properties.

Philippines, Implementation Guidelines for Presidential Memorandum Order No. 393, dated 9 September 1991, Directing the Armed Forces of the Philippines and the Philippines National Police to Reaffirm their Adherence to the Principles of Humanitarian Law and Human Rights in the Conduct of Security/Police Operations, Joint Circular Number 2-91, Department of National Defense, Department of Interior and Local Government, 1991, § 2(a).

Philippines

The Philippines’ AFP Standing Rules of Engagement (2005) states:

8. General Rules for the Correct Use of Force towards Mission Accomplishment

…

c. When a military operation is approved, it will be conducted to ensure that incidental injury to civilians and collateral damage to non-military objects are minimized.

…

h. The engagement of any target that meets the definition of high collateral damage requires NCA [National Command Authority] approval. This does not apply to immediate target engagement under the inherent right of self-defense.

i. Commanders of UCs [Unified Commands] and major component commanders may conduct offensive operations against the following high collateral damage time-sensitive situations/targets:

Philippines, AFP Standing Rules of Engagement, Armed Forces of the Philippines, General Headquarters, Office of the Chief of Staff, 1 December 2005, § 8(c), (h) and (i).

Cutting edge units must be able to defeat the armed threats in combat and yet avoid collateral damage. In this regard, we must improve on their mobility, firepower and accuracy, communication, survivability and ability to detect the armed groups.

The Russian Federation’s Regulations on the Application of IHL (2001) states:

The commander and staff while organising and conducting combat operations, firmly securing combat mission accomplishment, shall ensure respect of international humanitarian law, taking every possible precaution to avoid or if it is not possible, to minimize losses among the civilian population and damage to civilian property.

Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 16; see also § 29.

Sierra Leone

Sierra Leone’s Instructor Manual (2007) states:

[The principle of proportionality] requires an assessment of likely casualties, both military and civilian, and damage compared with the specific military advantage expected from the attack … The aim is to avoid or at the very least minimize collateral damage.

Switzerland’s Basic Military Manual (1987) states: “During every attack, commanding officers at the battalion or group level, and those of higher ranks, shall see to it that the civilian population … does not suffer any damage.”

Togo’s Military Manual (1996) states: “Precautions must be taken when planning military operations in order to avoid civilian losses and damage to civilian objects or to minimize such losses and damage when they are unavoidable.”

When exercising command over large and small units, commands and build-ups to accomplish a mission, the commander (commanding officer) shall take all possible precautionary measures to avoid collateral damage to the civilian population and to civilian objects, or, at least, to minimize it.

Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 2.3.1.2.

United Kingdom of Great Britain and Northern Ireland

The UK LOAC Pamphlet (1981) states: “Care must be taken to avoid incidental loss or damage to civilians or civilian objects.”

United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 4, p. 13, § 4(b).

United Kingdom of Great Britain and Northern Ireland

The UK LOAC Manual (2004) states in its chapter on air operations: “Precautions must be taken in air bombardment to avoid civilian death or injury and damage to civilian objects”.

United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 12.26(i).

With regard to internal armed conflict, the manual states:

15.22. In planning or carrying out attacks, precautions must be taken to limit attacks to military objectives and to minimize incidental loss or damage.

15.22.1. The need to take precautions can be inferred from the principle of proportionality and the principle of distinction, which require some care to be taken in the planning and execution of an attack. Attacks must be cancelled, suspended or re-planned if the rule in paragraph 15.21 [sic] cannot be complied with. The same applies in sieges.

United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 15.22.–15.22.1.

United States of America

The US Rules of Engagement for the Vietnam War (1971) stated: “While the goal is maximum effectiveness in combat operations, every effort must be made to avoid civilian casualties, minimize the destruction of private property, and conserve diminishing resources.”

United States, Rules of Engagement for the Employment of Firepower in the Republic of Viet-Nam, US Military Assistance Command Viet-Nam, Directive No. 525-13, May 1971, unclassified contents reprinted in Eleanor C. McDowell, Digest of United States Practice in International Law, 1975, US Department of State Publication 8865, Washington, D.C., 1976, pp. 814–815, § 3(a).

United States of America

The US Rules of Engagement for Operation Desert Storm (1991) required soldiers to avoid harming civilians and civilian property “unless necessary to save US lives”.

United States, Desert Storm – Rules of Engagement, Pocket Card, US Central Command, January 1991, reprinted in Operational Law Handbook, International and Operational Law Department, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia, 1995, pp. 8-7 and 8-8, §§ B and G.

United States of America

The US Naval Handbook (1995) requires naval commanders to “take all reasonable precautions, taking into account military and humanitarian considerations, to keep civilian casualties and damage to the minimum consistent with mission accomplishment and the security of the force”.

United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 8.1.2.1.

United States of America

The US Naval Handbook (2007) states:

Naval commanders must take all reasonable precautions, taking into account military and humanitarian considerations, to keep civilian casualties and damage to the minimum consistent with mission accomplishment and the security of the force.

United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 8.3.1.

In the event of employing and executing non-peaceful means and other necessary measures as provided for in this Law, the state shall exert its utmost to protect the lives, property and other legitimate rights and interests of Taiwan civilians and foreign nationals in Taiwan, and to minimize losses. At the same time, the state shall protect the rights and interests of the Taiwan compatriots in other parts of China in accordance with law.

China, Anti-Secession Law, 2005, Article 9.

Denmark

Denmark’s Military Criminal Code (1973), as amended in 1978, provides:

Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].

Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).

Denmark’s Military Criminal Code (2005) provides:

Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].

Denmark, Military Criminal Code, 2005, § 36(2).

Ireland

Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1977 Additional Protocol I, including violations of Article 57(4), and any “contravention” of the 1977 Additional Protocol II, including violations of Article 13(2), are punishable offences.

Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment.

Norway, Military Penal Code, 1902, as amended in 1981, § 108(b).

Philippines

The Philippines’ General Order No. 7 (2007) states:

Now, Therefore, I, Gloria M. Arroyo, President of the Philippines and Commander-in-Chief of all the armed forces of the Philippines, by the powers vested in me by the Constitution and the laws of the land, do hereby order:

Spain’s Royal Ordinances for the Armed Forces (2009) states: “In the conduct of any operation, [members of the armed forces] must take into account the principle of distinction … in order to … avoid, as feasible, incidental loss of life, suffering, physical and material damage that may affect [the civilian population]”.

In 2010, in the Fuel Tankers case, the Federal Prosecutor General at Germany’s Federal Court of Justice investigated whether war crimes or other crimes under domestic law had been committed in the course of an airstrike which was ordered by a colonel (Oberst) of the German armed forces against two tankers transporting fuel for the International Security Assistance Force in Afghanistan stolen by the Taliban near Kunduz and which resulted in the deaths of a number of civilians. The Federal Prosecutor General stated:

Pursuant to § 170 para. 2 StPO [Penal Procedure Code], the investigation proceedings which were initiated by the order of 12 March 2010 against Colonel (Oberst) Klein and Company Sergeant Major (Hauptfeldwebel) Wilhelm due to suspected offences under the VStGB [International Crimes Code] and other offences are to be terminated as a result of the investigations conducted and based on the sources of information set out hereafter and on the reasons given in detail hereafter.

Colonel (Oberst) Klein’s actions were lawful under international law and therefore justified under domestic criminal law …

…

cc)

Even considering the fact that the bombing killed civilians to be protected under the international law of armed conflict, the order to attack was lawful under international law.

(1)

… International humanitarian law … prohibits … attacks … against a military objective if at the time of the order to attack the anticipated civilian damage is out of proportion (“excessive” see Art. 51 para. 5 sub-para. b AP [1977 Additional Protocol] I) to the anticipated concrete and direct military advantage (see ICRC Customary International Humanitarian Law, 2005 – hereafter ICRC Customary IHL [Study] – p. 46ff). …

…

(3)

… Only if a commander refrained from taking feasible precautions in violation of international law (“feasible precaution”; see. Art. 57 para. 2 sub-para. a AP I; ICRC Customary IHL [Study] p. 51 ff.) and such precautions would have led to the anticipation of greater civilian collateral damage which then in fact materialized is thus relevant for an analysis of the proportionality of an attack. … In view of the circumstances known to Colonel (Oberst) Klein (distance to inhabited settlements, night time, presence of armed Taliban) and the informant’s statements, he considered the presence of protected civilians unlikely … Further feasible reconnaissance and precautionary measures (“feasible precautions”) were not promptly available in the concrete situation.

In its judgment in the Public Committee against Torture in Israel case in 2006, Israel’s High Court of Justice stated:

Customary international law regarding armed conflicts protects “civilians” from harm as a result of the hostilities … From that follows also the duty to do everything possible to minimize collateral damage to the civilian population during the attacks on “combatants” (see Eyal Benvenisti, Human Dignity in Combat: the Duty to Spare Enemy Civilians, 39 ISRAEL LAW REVIEW 81 (2006).

Israel, High Court of Justice, Public Committee against Torture in Israel case, Judgment, 14 December 2006, § 26.

Russian Federation

In 1995, in its judgment in the Situation in Chechnya case, the Russian Federation’s Constitutional Court recognized the applicability of the 1977 Additional Protocol II to the conflict in Chechnya. The Court stated that in accordance with the Protocol, “every effort must be made to avoid causing damage to civilians and their property”.

In 2008, in the BE (Iran) case, which concerned a claim to refugee protection of an Iranian who deserted from the Iranian army in 1999 rather than continue to lay anti-personnel mines in a populated part of Iranian Kurdistan, the England and Wales Court of Appeal stated: “International humanitarian law … requires belligerents to minimise collateral harm to civilians.”

In 2012, the Office of the President of Afghanistan issued a press release entitled “President Karzai strongly condemns the killing of four children in NATO operation in Logar Province”, which stated:

President Hamid Karzai condemns in the strongest possible terms the NATO military operation in Baraki Barak district of Logar province in which four children were killed.

As per the information by the provincial governor … , NATO forces carried out an operation on Sunday afternoon to detain two armed militants, but resulted in killing four innocent children who were just grazing animals.

Strongly condemning the attack, President Karzai stressed that “despite repeated pledges by NATO to avoid civilian casualties, innocent lives including of children are still being lost in fighting a terrorism whose havens and sanctuaries remain safe outside Afghanistan’s borders.”

This morning, President Karzai telephoned the provincial governor to inquire more on the incident and instructed an all-out investigation, to be reported back to the President.

Afghanistan, Office of the President, “President Karzai strongly condemns the killing of four children in NATO operation in Logar Province”, Press Release, 23 October 2012.

Colombia

The Report on the Practice of Colombia refers to an opinion of the Attorney General given before the House of Representatives and an attestation by the Cabinet to the effect that attacks on installations must be made in conditions of maximum safety for civilians. This obligation includes the duty to halt any action that might present a serious danger to civilian lives and physical integrity and the obligation to take all possible measures to preserve civilian lives and physical integrity.

Report on the Practice of Colombia, 1998, Chapter 1.6, referring to Cundinamarca Administrative Court, Case No. 4010, Opinion of the Attorney General given before the House of Representatives, Record of Evidence, pp. 33, 35 and 36, and Case No. 4010, Attestation by the Cabinet, 6 November 1985, Record of evidence, pp. 13–14.

Costa Rica

In 1991, in a letter to the UN Secretary-General concerning the Gulf War, Costa Rica commended “the precautions taken by the forces of the United States of America and its allies aimed at attacking as far as possible only military targets and causing the least possible suffering to the civilian population”.

In 2010, in the History and Geography Textbook for 8th Grade, Djibouti’s Ministry of National Education and Higher Education, under the heading “Basic rules of IHL” and in a section on “Distinction”, stated: “Before an attack, all precautions shall be taken to minimize incidental damage to civilians and civilian objects.ˮ

Djibouti, Ministry of National Education and Higher Education, History and Geography Textbook for 8th Grade, 2010, p. 194.

France

In 2008, in response to a parliamentary question, the Minister of Defence of France stated:

[France] is a party to the 1977 Additional Protocol I to the 1949 Geneva Conventions, which defines the major fundamental principles of protection of the civilian population against the effects of hostilities, in particular … the principle of … precaution in attack, which requires constant attention to reduce to a minimum any collateral damage. France considers this document is a fundamental pillar of international humanitarian law and wishes it to become universal as soon as possible, in order to allow for the requirements of humanity during armed conflicts to be better respected.

On Afghanistan, we remain seriously concerned about the intolerably high number of conflict-related civilian casualties. The large majority of them are caused by indiscriminate attacks by the Taliban, Al-Qaida and other violent armed groups. We would also like to take note of the continued progress made by Afghan and international forces in minimizing civilian casualties.

Germany, Statement by the ambassador of Germany before the UN Security Council on the protection of civilians in armed conflict, 10 May 2011, p. 1.

Indonesia

On the basis of an interview with a senior officer of the armed forces, the Report on the Practice of Indonesia states that the Indonesian armed forces normally observe the precautions listed in Article 57 of the 1977 Additional Protocol I.

Report on the Practice of Indonesia, 1997, Interview with a senior officer of the Indonesian armed forces, Chapter 1.6.

Israel

In a briefing in 1982, the Israeli Ministry of Foreign Affairs declared that Israeli forces had taken all precautions to concentrate military operations against only “terrorist” targets to diminish incidental loss of civilian life. In the same briefing, Israeli officials stated that their forces had taken all necessary and possible precautions to protect individual civilians, the civilian population and civilian objects from the danger of military operations.

The Report on the Practice of Israel states: “During the pre-attack planning phases, the IDF [Israel Defense Forces] incorporates all feasible precautions to ensure, as far as possible, that incidental civilian loss, injury or damage is minimized”.

Report on the Practice of Israel, 1997, Chapter 1.6.

Israel

In 2006, Israel’s Ministry of Foreign Affairs stated:

In practice Israel does not adopt the position … that civilians in the vicinity of a military objective must “share the danger”, but rather takes significant efforts to avoid or minimize civilian casualties. Any such operation is considered on an individual basis in order to ensure that it meets the test of proportionality. Frequently this means the rejection of proposed military operations when the likelihood of collateral damage to civilians and their property is considered too high. On other occasions, it means that operations are conducted in such a way as to reduce the likelihood of incidental damage, in terms of the timing or operational aspects of the attack.

In 2007, Israel’s Ministry of Foreign Affairs stated in a diplomatic note:

… it should be noted that even when civilians were in the vicinity of military objectives, Israel made significant efforts to avoid, and in any event to minimize, civilian casualties. Every operation was considered on an individual basis to ensure that it met the requirements of international law, including the test of proportionality. Frequently, this meant the rejection of proposed military operations when the likelihood of collateral damage to civilians and their property was considered too high. On other occasions, it meant that operations were conducted in such a way as to reduce the likelihood of incidental damage, in terms of the timing or operational aspects of the attack.

In 2008, in a background paper on Israel’s operations in Gaza, Israel’s Ministry of Foreign Affairs stated:

[I]n accordance with the established principles of international law, Israel seeks to avoid or minimize civilian casualties. Each operation and target is considered on an individual basis in order to ensure that it meets the tests of distinction and proportionality. Frequently this means the rejection of proposed military operations when the likelihood of collateral damage to civilians and their property is considered too high.

In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated:

The document [operational order] further confirmed the importance of minimising incidental harm to civilians and civilian facilities. The operational order provided that … “any attack on a legitimate target was to be planned to minimise collateral harm to civilians and civilian objectives, including by the determination of: the attack timing, the means of attack, the direction of attack, etc.”

Israel, Ministry of Foreign Affairs, The Operation in Gaza 27 December 2008–18 January 2009: Factual and Legal Aspects, 29 July 2009, § 225.

The report further stated|:

Even where a target was authorised in advance, the IDF [Israel Defense Forces] examined proportionality again immediately prior to the attack on the basis of real time data available to the person executing the attack. Thus, for example, when a pilot approaching a target identified the potential for disproportionate collateral damage, he or she would refrain from attacking the target or even – when possible – would divert a missile already fired, as occurred occasionally during the Gaza Operation. These rules of engagement applied fully during the Gaza Operation.

Israel, Ministry of Foreign Affairs, The Operation in Gaza 27 December 2008–18 January 2009: Factual and Legal Aspects, 29 July 2009, § 252.

[footnote in original omitted]

Israel

In July 2010, in a second update of its July 2009 report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009, Israel’s Ministry of Foreign Affairs stated:

IDF [Israel Defense Forces] orders include the obligation to take all feasible precautions in order to minimize the incidental loss of civilian life or property, such as by adjusting the timing of an attack, the means of attack, and the direction of attack, as well as aborting attacks under certain circumstances.

The Report on the Practice of Jordan considers that “it is normal that the military command[er] in charge should take in an attack all feasible precautions to avoid causing injury, loss or damage to the civilian population”.

Report on the Practice of Jordan, 1997, Chapter 1.6.

Malaysia

On the basis of interviews with members of the armed forces and the Ministry of Home Affairs, the Report on the Practice of Malaysia states that in any planned attack during the communist insurgency, “the Security Forces would always determine the position of the enemy to avoid or minimise civilian casualties”.

Report on the Practice of Malaysia, 1997, Interviews with members of the Malaysian armed forces and Ministry of Home Affairs, Chapter 1.4.

The report further states: “In practice, the Armed Forces, whenever possible, will not cause collateral damage to civilian objects.”

Report on the Practice of Malaysia, 1997, Chapter 1.3.

Netherlands

According to the Government of the Netherlands, commanders have to take all the precautionary measures required by Article 57 of the 1977 Additional Protocol I when carrying out an attack.

In 2003, in reply to written questions from the Parliament concerning, inter alia, guidelines for aerial bombardment, the Minister of Defence of the Netherlands stated:

The guidelines for target selection during aerial bombardments are based on the relevant provisions of International Humanitarian Law (IHL). Amongst others, all reasonable precautionary measures must be taken to avoid civilian casualties and to prevent collateral damage to civilian objects. In practice, Dutch fighter pilots will not attack targets, when it is likely that civilians will be present. Also, an attack may not be carried out if the collateral damage to be expected reasonably does not relate to the actual and direct military advantage.

…

In the regulations and procedures regarding the planning and deployment of Dutch fighter planes, precautionary measures have been taken to prevent unintentional collateral damage.

In 1991, in a report on military operations to liberate Kuwait submitted to the UN Security Council, Saudi Arabia specified that the Royal Saudi Forces only targeted military objectives and avoided “civilian targets and populated areas, in order not to inflict harm on civilians and civilian installations”.

Saudi Arabia, Report on military operations to liberate Kuwait, annexed to Letter dated 21 February 1991 to the President of the UN Security Council, UN Doc. S/22259, 23 February 1991, p. 2.

Somalia

In 2011, in its comments on the concluding observations of the Human Rights Council concerning Somalia’s report, Somalia’s Transitional Federal Government stated:

The Government is committed to issuing clear and public orders and taking all necessary measures to prevent civilian casualties and ensure compliance with IHL including … the imperative to take the necessary precautionary measures to avoid or minimize incidental civilian casualties and damage to their property.

Somalia, Comments by the Transitional Federal Government of Somalia on the concluding observations of the Human Rights Council concerning the report of Somalia, submitted 21 September 2011, § 98.73.

Switzerland

Switzerland’s ABC of International Humanitarian Law (2009) states:

Conduct of hostilities

Not all Means and methods of warfare are allowed in an Armed conflict. International humanitarian law stipulates the military operations, tactics and weapons that are permissible. The two generally accepted principles of Distinction and Proportionality are the basis for a number of specific rules such as the prohibition of direct attacks on the civilian population or on Civilian objects, the prohibition of indiscriminate attacks and the obligation to adopt precautionary measures (Precaution) so as to avoid or limit casualties among Civilians and damage to civilian objects to the greatest possible extent.

In 2010, in its objection to the reservation by the United States to the 1980 Protocol III to the Convention on Certain Conventional Weapons, Switzerland stated:

Upon depositing the instrument of ratification of Protocol III to the Convention on Certain Conventional Weapons on 21 January 2009, the United States of America made a reservation with reference to paragraphs 2 and 3 of article 2 of the said Protocol. According to the reservation, the United States

“reserve[s] the right to use incendiary weapons against military objectives located in concentrations of civilians where it is judged that such use would cause fewer casualties and/or less collateral damage than alternative weapons, but in so doing will take all feasible precautions with a view to limiting the incendiary effects to the military objective and to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects”.

Switzerland appreciates the willingness expressed by the United States to take all feasible precautions to protect the civilian population and individual civilians not directly participating in hostilities. Switzerland considers that these measures are in keeping with the fundamental principle of distinction under international humanitarian law, a principle that is enshrined, in particular, in articles 57 (2) (ii) and 57 (4) of the first 1977 Protocol Additional to the Geneva Conventions of 1949. These provisions require each party to a conflict to “take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects”.

Nonetheless, Switzerland considers that the reservation made by the United States is incompatible with the object and purpose of Protocol III, and therefore it objects to the reservation for the following reasons: …

Switzerland considers that this objection does not constitute an obstacle to the entry into force of Protocol III as between Switzerland and the United States of America.

Switzerland, Objection to the Reservation by the United States of America to the 1980 Protocol III to the Convention on Certain Conventional Weapons, 2 February 2010.

Switzerland

In 2012, Switzerland’s Federal Department of Foreign Affairs issued a press release entitled “Appeal by the Swiss authorities for compliance with international humanitarian law in Syria”, which stated:

International humanitarian law is applicable to non-international armed conflict.

4. International humanitarian law is applicable in non-international armed conflicts. All parties to the conflict are therefore obliged to respect its rules in all circumstances, including the rules protecting persons who are [not] or are no [longer] participating in the hostilities, as well as the rules relative to the means and methods of warfare. …

…

Appeal to respect international rules

…

7. [Switzerland] recalls that in the conduct of military operations, all feasible precautions must be taken with a view to avoid incidental loss of civilian life[,] injury to civilians and damage to civilian objects and collateral damage to civilian property. All parties are subject to the obligation to respect the principles of distinction, proportionality and precaution.

Switzerland, Federal Department of Foreign Affairs, “Appeal by the Swiss authorities for compliance with international humanitarian law in Syria”, Press Release, 15 November 2012.

Syrian Arab Republic

The Report on the Practice of the Syrian Arab Republic asserts that the Syrian Arab Republic considers Article 57 of the 1977 Additional Protocol I to be part of customary international law.

Report on the Practice of the Syrian Arab Republic, 1997, Chapter 1.6.

Thailand

In 2011, at the Second Meeting of States Parties to the Convention on Cluster Munitions, the representative of Thailand stated:

I would like to refer to Thailand’s statement during the Intersessional Meeting in Geneva in June. We have clearly demonstrated our willingness to have a constructive engagement with the international community. We have placed great importance on our obligations under [] international humanitarian law as well as our unwavering commitment to ensure the safety of civilians in conflict situations.

…

Having said that, I wish to draw attention to paragraph 21 inter alia regarding “reported actions reacting to the instance of use of cluster munitions by Thailand in 2011”] of the Draft Beirut Progress Report. … The delegation of Thailand would like to put into record the following two important points. First, it needs to reiterate here that Thailand strictly adhered to the applicable international humanitarian law that all states are obliged to prevent unnecessary loss of civilian lives. The clarification on this particular point has to be made to reflect our views for the better understanding of the situation in that paragraph.

Thailand, Statement by the representative of Thailand at the Second Meeting of States Parties to the Convention on Cluster Munitions, 14 September 2011, p. 1.

[emphasis in original]

United Kingdom of Great Britain and Northern Ireland

In 1991, in two reports submitted to the UN Security Council on operations in the Gulf War, the United Kingdom made assurances that the instructions issued to UK pilots were to avoid causing civilian casualties as far as possible.

United Kingdom, Letter dated 21 January 1991 to the President of the UN Security Council, UN Doc. S/22115, 21 January 1991, p. 1; Letter dated 28 January 1991 to the President of the UN Security Council, UN Doc. S/22156, 28 January 1991, p. 1.

In a subsequent report, the United Kingdom reiterated that “pilots have clear instructions to minimize civilian casualties” and stated that “on a number of occasions, attacks have not been pressed home because pilots were not completely satisfied they could meet these conditions”.

United Kingdom, Letter dated 13 February 1991 to the President of the UN Security Council, UN Doc. S/22218, 13 February 1991, p. 1.

United Kingdom of Great Britain and Northern Ireland

In 1991, in reply to a question in the House of Lords concerning the use of conventional weapons against nuclear facilities, chemical weapons plants and dumps, and petrochemical enterprises situated in towns or cities, the UK Minister of State, Foreign and Commonwealth Office, stated: “International law requires that, in planning an attack on any military objective, account is taken of certain principles. These include the [principle] that civilian losses, whether of life or property, should be avoided or minimised so far as practicable.”

United Kingdom, House of Lords, Statement by the Minister of State, Foreign and Commonwealth Office, 4 February 1991, Hansard, Vol. 525, Written Answers, col. 37.

United Kingdom of Great Britain and Northern Ireland

In 1991, during a debate in the UN Security Council concerning the Gulf War, the United Kingdom deplored civilian casualties but reiterated that coalition forces had been strictly instructed to strive to keep such casualties to a minimum.

In 1991, in reply to a question in the House of Lords concerning military operations during the Gulf War, the UK Parliamentary Under-Secretary of State of the Ministry of Defence wrote:

It is Allied policy … to make every possible effort to minimise civilian casualties. This is entirely in accordance with the rules of war and the Geneva Convention. The extraordinary measures that Allied air forces have taken to avoid causing civilian casualties demonstrate clearly that Allied military commanders are working strictly within this policy.

United Kingdom, House of Lords, Statement by the Parliamentary Under-Secretary of State for Defence, 27 February 1991, Hansard, Vol. 526, Written Answers, col. 52.

United Kingdom of Great Britain and Northern Ireland

In 2003, in reply to a written question in the House of Commons, the Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, wrote:

Military action inevitably carries risks, but as my right hon. Friend the Secretary of State has made clear in the House, our targeting and weapons selection processes are rigorous. Every effort is made to avoid civilian casualties.

United Kingdom, House of Commons, Written answer by the Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, Hansard, 10 March 2003, Vol. 401, Written Answers, col. 37W.

United Kingdom of Great Britain and Northern Ireland

In 2003, during a debate in the House of Commons, the UK Prime Minister replied to questions by Members:

Mrs. Alice Mahon (Halifax): It is widely reported in today’s newspapers that the United States intends to use a new bomb that will melt the Iraqi communications systems. Will this bomb also melt the equipment that is used in hospitals and that runs the water and electricity supplies in Baghdad? Will the Prime Minister assure us that it does not melt people?

The Prime Minister: In any military conflict, we will operate in accordance with international law. Any weapons or munitions that are used will be in accordance with international law. I assure my hon. Friend that we will do everything that we can to minimise civilian casualties and, indeed, to maximise the possibilities of a swift and successful conclusion to any conflict.

…

Mr. Martin Caton (Gower): International humanitarian law prohibits military attack that fails to discriminate between combatants and non-combatants or that disproportionately impacts on civilians. Can my right hon. Friend assure me that, in the war on Iraq that the House sanctioned last night, we will not be employing cluster bombs and that electricity, transport and water infrastructure will not be targeted?

The Prime Minister: I simply say in relation to any weapons or munitions that we use that we will use only those that are in accordance with international law and with the Geneva convention. That is the responsibility of the Government and is the commitment of this Government and has been of other British Governments in the past. We will do everything that we can to minimise civilian casualties. The reason why, in respect of any military action that we take, we get legal advice not merely on the military action itself but on the targeting is to make sure that that happens. Of course, I understand that, if there is conflict, there will be civilian casualties. That, I am afraid, is in the nature of any conflict, but we will do our best to minimise them.

United Kingdom, House of Commons, Statements by the Prime Minister, Hansard, 19 March 2003, Vol. 401, Debates, cols. 933–934.

United Kingdom of Great Britain and Northern Ireland

In 2003, during a debate in the House of Commons, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated:

I have seen in Afghanistan some of the damage that can be done by the weapons deployed in conflict situations. It is important that we support the good work being done by various NGOs in trying to ensure that there is a proper clean-up of the results of conflict. As my hon. Friend will know, the Ottawa agreement does not make the use of cluster bombs unlawful. At this stage, I cannot say what the intentions are in respect of those weapons. However, when it comes to targeting, we are determined that the coalition forces will do everything possible to ensure that they avoid civilian casualties, and to avoid creating circumstances that will cause civilian casualties in the aftermath of a conflict. We are very conscious of the matter, and we will seek to deal with it.

United Kingdom, House of Commons, Statement by the Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, Hansard, 19 March 2003, Vol. 401, Debates, col. 945.

United Kingdom of Great Britain and Northern Ireland

In 2003, during a debate in the House of Commons, the UK Secretary of State for Defence made a statement and replied to questions by Members:

The Secretary of State for Defence (Mr. Geoffrey Hoon): With permission, Mr. Speaker, I would like to make a statement about military operations to disarm Iraq of its weapons of mass destruction.

…

I would like to draw the attention of the House to two particular points. First, that coalition forces will take every possible care to minimise civilian casualties or damage to civilian infrastructure. The coalition will use modern weapons, which are more accurate than ever, but we can never unfortunately exclude the possibility of civilian casualties, tragic though those always are. However, people should treat with caution Iraq’s claims of civilian casualties. The Iraqi people are not our enemies, and we are determined to do all we can to help them build the better future that they deserve.

Secondly, I caution the House against suggestions that this campaign will be over in a very short time …

…

Laura Moffatt (Crawley): My right hon. Friend has outlined the progress in this campaign. We must win the campaign and not allow our armed forces to go into conflict without the correct weaponry to protect them. Could he say something about the more controversial weapons that may need to be used, such as depleted uranium heads on weapons and cluster bombs, for our constituents who may have concerns about them?

Mr. Hoon: I emphasise that a range of weapons will have to be used to prosecute this campaign successfully and achieve the successful result that my hon. Friend rightly advocates. I will not allow our forces to be prevented from using those lawful weapons that are most suitable for achieving those tasks. I assure her equally that those weapons are used only after the most careful consideration. Depleted uranium and cluster bombs have a particular military purpose. If that purpose is necessary, they will be used; if it is not, they will not be used.

…

Mr. Neil Gerrard (Walthamstow): The Secretary of State has said that he wants civilian casualties to be minimised and yet, when my hon. Friend the Member for Crawley (Laura Moffatt) asked about cluster bombs, he would not rule out their use. Does he not see the contradiction between his two statements? The record of the use of cluster bombs is that they do, by their very nature, cause civilian casualties. In the first Gulf war, the United States used something like 60,000 cluster bombs, containing up to 20 million bomblets, in Iraq and Kuwait. Does the Secretary of State really believe that a repetition of that sort of behaviour will not cause civilian casualties?

Mr. Hoon: I made it clear that those particular weapons have a particular purpose. They will be used to achieve that purpose if it is necessary. Their use will be limited to those circumstances. I assure my hon. Friend that they are not used in a random way; but I would be failing in my duties as Secretary of State for Defence if I did not allow our armed forces to use the most appropriate weapons to deal with the threats against them.

…

Jim Knight (South Dorset): Will my right hon. Friend clarify what principles the UK military will use for their targeting and whether those principles will be shared by the United States and other allies?

Mr. Hoon: It is absolutely the case that we operate in a coalition with the same principles of international law governing the targeting. I have already set out some of those principles to the House. It is important to avoid where we can civilian casualties, while recognising the risk that there will obviously be civilian harm, but working through the details of the targeting programme to minimise those risks wherever possible.

United Kingdom, House of Commons, Statements by the Secretary of State for Defence, Hansard, 20 March 2003, Vol. 401, Debates, cols. 1087–1100.

United Kingdom of Great Britain and Northern Ireland

In 2003, during a debate in the House of Commons, the UK Secretary of State for Defence made a statement and replied to questions by Members:

The Secretary of State for Defence (Mr. Geoffrey Hoon): With permission, Mr. Deputy Speaker, I would like to make a statement about military action in Iraq.

…

It is less than 24 hours since these operations were launched. They are making steady progress. Our objectives remain as set out in the document placed in the Library of the House yesterday: to remove the Iraqi regime and its weapons of mass destruction. We have no quarrel with the Iraqi people and will continue to take every precaution to reduce the risk of civilian casualties …

…

Mr. Gerald Kaufman (Manchester, Gorton): Can my right hon. Friend confirm that, in so far as it is compatible with the attainment of military objectives, it is our policy to maintain as intact as possible the public utilities infrastructure in Iraq to avoid causing unnecessary hardship to the Iraqi population and so that, when hostilities are concluded, it will be easier to rebuild the lives of the people of Iraq?

Mr. Hoon: I am grateful to my right hon. Friend for making an excellent point, one that I sought to emphasise yesterday. I recognise that when they hear the number of munitions involved in bombing campaigns, many right hon. and hon. Members immediately think of the type of bombing campaign conducted in the second world war, in which utilities were targeted. This will be a very different type of campaign, aimed at regime targets in and around Baghdad and elsewhere in Iraq. Certainly, in our preparation of the campaign, we have had clear regard to the need to rebuild Iraq thereafter. I give my right hon. Friend the assurance that, wherever possible, we will avoid striking any target that is of long-term benefit to the people of Iraq.

…

Mrs. Alice Mahon (Halifax): The Secretary of State knows that the American Government will do anything to avoid their citizens going back in body bags, and I hope that our Government would take the same view. However, does the fact that B-52s have left RAF Fairford mean that “operation shock and awe” is going to take place? If it does, how will we avoid killing civilians in such a massive dropping of ordnance on urban areas?

Mr. Hoon: As I told the House yesterday, inevitably there are risks to civilians, but the efforts taken by the UK, the United States and elsewhere to target the campaign accurately against regime targets continue. Although I cannot give a guarantee that civilians will not be affected, I can assure my hon. Friend that there is no ambition whatever to target civilians. Our quarrel is with the regime in Iraq and our targets are designed accordingly.

United Kingdom, House of Commons, Statements by the Secretary of State for Defence, Hansard, 21 March 2003, Vol. 401, Debates, cols. 1209–1219.

United Kingdom of Great Britain and Northern Ireland

In 2003, during a debate in the UN Security Council, the UK representative stated:

Coalition action is therefore now under way to enforce Security Council decisions on complete Iraqi disarmament. This action is being undertaken in a manner that is directed only at the regime that is responsible for this failure to respect the United Nations. We are doing everything possible to minimize the effect on civilians, to leave infrastructure intact and to ensure that the necessary humanitarian assistance reaches the Iraqi people as quickly as possible.

In 2003, in reply to a written question in the House of Commons, the UK Minister of State for the Armed Forces, Ministry of Defence, wrote:

We have no means of ascertaining the numbers of Iraqis killed or injured during the coalition’s military action, although we make every effort to keep any impact upon the Iraqi civilian population to an absolute minimum …

…

The United Kingdom of Great Britain and Northern Ireland takes its responsibilities toward the Iraqi people extremely seriously. Coalition forces are taking the utmost care to minimise the impact of the conflict on civilians and to provide humanitarian assistance where appropriate.

United Kingdom, House of Commons, Written answer by the Minister of State for the Armed Forces, Ministry of Defence, Hansard, 1 April 2003, Vol. 402, Written Answers, cols. 651W–653W.

United Kingdom of Great Britain and Northern Ireland

In 2003, in reply to a written question in the House of Commons, the UK Minister of State for the Armed Forces, Ministry of Defence, wrote:

We have no means of ascertaining the numbers of military or civilian lives lost during the conflict in Iraq to date, although we make every effort to keep any impact upon the Iraqi civilian population to an absolute minimum. All our military planning is conducted in full accordance with our obligations under international law to employ the minimum necessary use of force to achieve military effect, and to avoid injury to non-combatants or civilian infrastructure. Practically, this is achieved through a combination of an extremely careful targeting process and highly accurate precision guided weapons.

United Kingdom, House of Commons, Written answer by the Minister of State for the Armed Forces, Ministry of Defence, Hansard, 2 April 2003, Vol. 402, Written Answers, col. 738W.

United Kingdom of Great Britain and Northern Ireland

In 2003, during a debate in the House of Commons, the UK Secretary of State for Defence made a statement and replied to a question by a Member:

The Secretary of State for Defence (Mr. Geoffrey Hoon): With permission, Mr. Deputy Speaker, I should like to make a further statement about military action in Iraq.

…

Coalition forces have taken the utmost care over the targeting of the air campaign. Every effort has been made to minimise the risk of any civilian casualties or damage to the civilian infrastructure …

…

Helen Jackson (Sheffield, Hillsborough): There were graphic television images yesterday of the impact of a cluster bomb that was dropped, I believe, on the town of Hillah, south of Baghdad. Will my right hon. Friend assure the House that cluster bombs will not be dropped on the streets and urban areas of Basra, especially as I applaud the Government’s intention to win the hearts and minds of the local population?

Mr. Hoon: I also saw some graphic images, but I hope that my hon. Friend and others will suspend their belief – certainly when those graphic images are the product of Iraqi minders taking television crews to particular locations … However, I do not doubt that there are occasions when cluster bombs and other munitions can cause civilian casualties. I regret those casualties: they are a consequence of conflict, and we try to minimise them, if at all possible. I can certainly tell the House that so far it has not been necessary to use cluster bombs in and around Basra.

United Kingdom, House of Commons, Statements by the Secretary of State for Defence, Hansard, 3 April 2003, Vol. 402, Debates, cols. 1070–1079.

United Kingdom of Great Britain and Northern Ireland

In 2003, during a debate in the House of Commons, the UK Secretary of State for Defence made a statement and replied to questions by Members:

The Secretary of State for Defence (Mr. Geoffrey Hoon): With permission, Mr. Speaker, I would like to make a further statement about military action in Iraq and the efforts that we are making to help the Iraqi people to rebuild their country.

…

Throughout this campaign, the coalition has sought to use minimum force to achieve our military objectives. We have never sought to inflict unnecessary suffering on Iraqi civilians, or, indeed, on members of the Iraqi armed forces. We have consistently encouraged members of the Iraqi armed forces to end their increasingly futile resistance and return to their homes and families …

We took great care in the planning of recent operations in Basra: the aim was to remove remnants of the regime while minimising the risk to civilians and to our armed forces …

…

Mr. Elfyn Llwyd (Meirionnydd Nant Conwy): The Secretary of State referred to the use of minimum force and the need to minimise Iraqi civilian casualties. Does not the continued use of cluster bombs make that more difficult, and in due course will it not make the huge task of reconstruction much more difficult and dangerous?

Mr. Hoon: As I have said on previous occasions when that issue has arisen, the use of all weapons involves striking a balance. All weapons are capable of damaging the civilian population as well as those against whom they are targeted. It is necessary to strike a balance between not only the risk to civilians, but equally the protection of coalition forces. In relation to the use of cluster bombs, I am confident that the right balance has been struck.

…

Glenda Jackson (Hampstead and Highgate): If we do indeed owe a duty of care to the Iraqi people, how is it possible that we can still contemplate the use of cluster bombs, as it is well known that the greatest number of deaths and injuries are experienced by civilians from the hundreds of unexploded bomblets that lie around on the ground? What steps are being taken to ensure that civilians may not enter the areas where those bombs have been used before the bomblets can be removed or exploded?

Mr. Hoon: I have dealt with the general question on a number of occasions, so I will not repeat that again, but, on the specific point, careful note has been taken of where and when cluster bombs have been used and, as I have indicated to the House before, the people who most often risk their lives in dealing with the small failure rate of those weapons are members of Britain’s armed forces.

United Kingdom, House of Commons, Statements by the Secretary of State for Defence, Hansard, 7 April 2003, Vol. 403, Debates, cols. 21–33.

United Kingdom of Great Britain and Northern Ireland

In 2003, in reply to a written question in the House of Commons, the UK Secretary of State for Defence wrote:

We are fully aware of the significance of the holy sites in Najaf and Karbala. The coalition is taking every precaution to respect and avoid damage to them.

…

The United Kingdom of Great Britain and Northern Ireland is fully committed to the protection of cultural property in times of armed conflict. The Government takes very seriously its obligations to act in conformity with international law, the UN Charter and international humanitarian law. In all our military planning, very careful attention is applied to ensure that we minimise the risk of damage to all civilian sites.

The targeting process during current operations is conducted in accordance with all obligations under international law, including Additional Protocol 1 of the Geneva Conventions, and the Targeting Directive to United Kingdom of Great Britain and Northern Ireland forces stationed in the Gulf contains explicit guidance on their obligations under international and domestic law. For reasons of force protection, I cannot comment on the specifics of our targeting policy, and I am therefore withholding that information under Exemption 1 of the Code of Practice on Access to Government Information (Defence, security and international relations).

United Kingdom, House of Commons, Written answer by the Secretary of State for Defence, Hansard, 8 April 2003, Vol. 403, Written Answers, col. 140W.

United Kingdom of Great Britain and Northern Ireland

In 2003, in reply to a written question in the House of Commons asking whether there would be “an inquiry into the numbers of deaths of journalists during the current campaign in Iraq”, the UK Parliamentary Under-Secretary of State for Defence wrote:

All reports of coalition action resulting in the deaths of civilians are investigated. The United Kingdom of Great Britain and Northern Ireland works with coalition partners to verify the facts of such reported incidents. The profession of civilian casualties is not a concern when investigating such incidents.

Very careful attention is applied to ensure that in the coalition’s campaign the risk of damage to civilian populations and infrastructure is minimised. However, military action is never without risk, and lawful actions against military targets may result in harm to civilians. Any civilian casualties resulting from military action are deeply regretted.

The active battlefield is not a benign environment and coalition forces cannot be held responsible for, or guarantee the safety of, journalists who enter such a location independently. This is one of the reasons why we have embedded war correspondents whose activities can be properly co-ordinated with our own forces.

United Kingdom, House of Commons, Written answer by the Parliamentary Under-Secretary of State for Defence, Hansard, 14 April 2003, Vol. 403, Written Answers, col. 571W.

United Kingdom of Great Britain and Northern Ireland

In 2003, in reply to a written question in the House of Commons, the UK Minister of State for the Armed Forces, Ministry of Defence, wrote:

We take our obligations under International Law and the Laws of Armed Conflict to avoid collateral damage and excessive military casualties very seriously. Any loss of life, particularly civilian, is deeply regrettable, but in a military operation the size of Operation Telic it is also unavoidable. Through very strict rules of engagement, the use of precision munitions and the tactical methods employed to liberate Iraq’s major cities, we are satisfied that the coalition did everything possible to avoid unnecessary casualties.

United Kingdom, House of Commons, Written answer by the Minister of State for the Armed Forces, Ministry of Defence, Hansard, 1 September 2003, Vol. 409, Written Answers, col. 905W.

United Kingdom of Great Britain and Northern Ireland

In 2003, during a debate in the House of Lords, the UK Parliamentary Under-Secretary of State for Defence stated:

My Lords, every effort is made to minimise the impact of military operations on the Iraqi civilian population, and we deeply regret all civilian casualties. Since 1st May 2003, we have investigated every civilian fatality allegedly caused by UK military personnel, sometimes resulting in a formal investigation by the Special Investigation Branch.

We treat claims for compensation in respect of civilians who have allegedly been killed or injured by UK forces since 1st May on their merits, in accordance with English law. We have no liability to pay compensation in respect of Iraqis killed or injured during combat operations.

United Kingdom, House of Lords, Statement by the Parliamentary Under-Secretary of State for Defence, Hansard, 17 December 2003, Vol. 655, Debates, col. 1143.

United Kingdom of Great Britain and Northern Ireland

In 2006, in a written answer to a question concerning “the implications under the Geneva Conventions of the targeting by Israel of civilian facilities and infrastructure in Gaza”, the UK Minister of State for the Middle East, Foreign and Commonwealth Office, stated:

We are opposed to the targeting of civilian facilities and call upon Israel to respect international law and, in particular, the requirement of proportionality and the duty to take all feasible precautions to avoid civilian casualties.

United Kingdom, House of Commons, Written answer by the Minister of State for the Middle East, Foreign and Commonwealth Office, Hansard, 10 July 2006, Vol. 448, Written Answers, col. 1522W.

United Kingdom of Great Britain and Northern Ireland

In 2007, in its response to a report by the House of Commons Defence Committee on UK operations in Afghanistan, the UK Government stated:

We are grateful to the Committee for highlighting the extensive effort made by our Forces to minimise civilian casualties. The loss of innocent lives is a tragedy and ISAF [International Security Assistance Force] and coalition forces seek at all times to avoid civilian casualties. Our targeting process, weapons selection, doctrine, training and rules of engagement are all designed with this as a priority.

United Kingdom, House of Commons Defence Committee, UK operations in Afghanistan: Government Response to the Committee’s Thirteenth Report of Session 2006–07, HC 1024, 12 October 2007, p.4.

United Kingdom of Great Britain and Northern Ireland

In 2009, in response to a question in the House of Commons, the UK Secretary of State for Defence wrote: “We deeply regret any incidents where civilians are killed as a result of actions by international forces. Procedures are in place, and being constantly updated in the light of experience, both to minimise the risk of these casualties occurring and to investigate any incidents that do happen.”

United Kingdom, House of Commons, Written Statement by the Secretary of State for Defence, Hansard, 23 February 2009, Vol. 488, Written Statements, col. 18W.

United States of America

It is reported that in 1952, during the Korean War, a US General gave the instruction “to attack specific military targets at Pyongyang and to make every effort to avoid needless civilian casualties”.

Robert F. Futrell, The United States Air Force in Korea 1950–1953, Office of Air Force History, US Air Force, Washington, D.C., Revised edition, 1983, p. 515.

United States of America

In 1966, in the context of the Vietnam War, the US Department of Defense stated: “All possible care is taken to avoid civilian casualties.”

On 30 December 1966, in reply to an inquiry from a member of the US House of Representatives requesting a restatement of US policy on targeting in North Vietnam, a US Deputy Assistant Secretary of Defense wrote: “All reasonable care is taken to avoid civilian casualties.”

United States, Letter from Deputy Assistant Secretary of Defense Goulding to US Representative Ogden Reid from New York, 30 December 1966, reprinted in Marjorie Whiteman, Digest of International Law, Vol. 10, Department of State Publication 8367, Washington, D.C., 1968, p. 428.

United States of America

In 1972, the General Counsel of the US Department of Defense stated:

A review of the operating authorities and rules of engagements for all of our forces in Southeast Asia, in air as well as ground and sea operations, by my office reveals that not only are such operations in conformity with this basic rule [that the loss of life and damage to property must not be out of proportion to the military advantage to be gained], but that in addition, extensive constraints are imposed to avoid if at all possible the infliction of casualties on noncombatants and the destruction of property other than that related to the military operations in carrying out military objectives.

United States, Letter from J. Fred Buzhardt, General Counsel of the Department of Defense, to Senator Edward Kennedy, Chairman of the Subcommittee on Refugees of the Committee on the Judiciary, 22 September 1972, AJIL, Vol. 67, 1973, pp. 122–124.

United States of America

In 1986, in the context of US attacks on Libyan targets, the United States stated:

The United States exercised great care in restricting its military response to terrorist-related targets. It took every possible precaution to avoid civilian casualties and to limit collateral damage … In carrying out this action, the United States took every possible precaution to avoid civilian casualties and to limit collateral damage.

United States, Letter dated 14 April 1986 to the President of the UN Security Council, UN Doc. S/17990, 14 April 1986.

United States of America

In 1987, the Deputy Legal Adviser of the US Department of State affirmed:

We support the principle that all practicable precautions, taking into account military and humanitarian considerations, be taken in the conduct of military operations to minimize incidental death, injury, and damage to civilians and civilian objects.

United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, pp. 426–427.

United States of America

In 1991, in response to an ICRC memorandum on the applicability of IHL in the Gulf region, the US Department of the Army stated:

The obligation of distinguishing combatants and military objectives from civilians and civilian objects is a shared responsibility of the attacker, defender, and the civilian population as such. An attacker must exercise reasonable precautions to minimize incidental or collateral injury to the civilian population, consistent with mission accomplishment and allowable risk to the attacking force.

United States, Message from the Department of the Army to the legal adviser of the US Army forces deployed in the Gulf, 11 January 1991, § 8(E), Report on US Practice, 1997, Chapter 1.6.

United States of America

In 1991, in a report submitted to the UN Security Council on operations in the Gulf War, the United States stated: “The military actions initiated by the United States and other States co-operating with the Government of Kuwait … are directed strictly at military and strategic targets and every effort has been made to minimize civilian casualties.”

United States, Letter dated 17 January 1991 to the President of the UN Security Council, UN Doc. S/22090, 17 January 1991, p. 2.

In another such report, the United States stated: “Allied aircraft involved in these attacks are taking every precaution to avoid civilian casualties. These pilots are in fact placing themselves in greater danger in order to minimize collateral damage and civilian casualties.”

United States, Letter dated 30 January 1991 to the President of the UN Security Council, UN Doc. S/22173, 30 January 1991, p. 1.

In a subsequent report, the United States reiterated: “Coalition forces have taken every precaution to minimize collateral damage to civilian facilities.”

United States, Letter dated 8 February 1991 to the President of the UN Security Council, UN Doc. S/22216, 13 February 1991, p. 1

United States of America

In 1991, in a diplomatic note to Iraq concerning operations in the Gulf War, the United States stated: “Hostilities must be conducted in a manner so as to minimize injury to civilians.”

United States, Department of State, Diplomatic Note to Iraq, Washington, 19 January 1991, annexed to Letter dated 21 January 1991 to the President of the UN Security Council, UN Doc. S/22122, 21 January 1991, p. 2.

United States of America

In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated:

An attacker must exercise reasonable precautions to minimize incidental or collateral injury to the civilian population or damage to civilian objects, consistent with mission accomplishment and allowable risk to the attacking forces … As correctly stated in Article 51(8) of [the 1977 Additional] Protocol I, a nation confronted with callous actions by its opponent (such as the use of “human shields”) is not released from its obligation to exercise reasonable precaution to minimize collateral injury to the civilian population or damage to civilian objects. This obligation was recognized by Coalition forces in the conduct of their operations … As frequently noted during the conduct of the conflict, exceptional care was devoted to minimize collateral damage to civilian population and property.

United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, pp. 625, 627 and 644.

United States of America

In 1992, a legal review by the US Department of the Air Force of the legality of extended range anti-armour munition stated that, while legal as such, “care should also be taken [when using such munition] to ensure that the possibility of collateral civilian casualties is minimized, and that it is always used with a neutralizing mechanism”.

In 1993, in its report to Congress on the protection of natural and cultural resources during times of war, the US Department of Defense stated:

The obligation to take reasonable measures to minimize damage to natural resources and cultural property is shared by both an attacker and a defender. A number of steps can be taken by an attacker in order to minimize collateral damage to natural resources or cultural property … [During the Gulf War,] the U.S. and its Coalition partners in Desert Storm recognized that they were fighting in the “cradle of civilization” and took extraordinary measures to minimize damage to cultural property … Other steps were taken to minimize collateral damage. Although intelligence collection involves utilization of very scarce resources, these resources were used to look for cultural property in order to properly identify it. Target intelligence officers identified the numerous pieces of cultural property or cultural property sites in Iraq; a “no-strike” target list was prepared, placing known cultural property off limits from attack, as well as some otherwise legitimate targets if attack on the latter might place nearby cultural property at risk of damage.

United States, Department of Defense, Report to Congress on International Policies and Procedures Regarding the Protection of Natural and Cultural Resources During Times of War, 19 January 1993, pp. 203–205.

United States of America

In 1998, when announcing the missile attacks against targets in Afghanistan and Sudan, the US President stated that “every possible effort to minimize the loss of innocent life” had been made. The Chairman of the Joint Chiefs of Staff noted that the attacks were carried out at night time in order to minimize the incidental loss of civilian life, and the President’s National Security Adviser stated that the government had verified that no night shift was at work at the chemical plant bombed in Sudan. The Defense Secretary stressed that the possibility of an airborne plume of toxic chemicals from the Sudanese plant had been taken into account in an effort to minimize civilian casualties.

The opinio juris of the United States is that measures to minimize civilian casualties and damage must be undertaken to the extent that military necessities permit under the circumstances ruling at the time. The measures might include warnings, care in selecting targets, weapons and methods of attack and, especially against targets in inhabited areas, breaking off attacks that may not be sufficiently accurate.

Report on US Practice, 1997, Chapter 1.6.

Viet Nam

In 2008, in as statement before the UN Security Council on the protection of civilians in armed conflict, the representative of Viet Nam stated that “regional organizations, with their good understanding of regional stakeholders, are well positioned to convince parties to armed conflict to minimize their operations in civilian areas.”

Viet Nam, Statement by the representative of Viet Nam during a debate in the UN Security Council on the protection of civilians in armed conflict, 27 May 2008, p. 14.

Zimbabwe

The Report on the Practice of Zimbabwe states that the provisions of Article 57 of the 1977 Additional Protocol I would be regarded as customary by Zimbabwe because of its adoption of the Geneva Conventions Amendment Act which incorporates the 1977 Additional Protocol I into Zimbabwe’s law and practice.

UN General Assembly Resolution 2675 (XXV), adopted in 1970, states: “In the conduct of military operations, every effort should be made to spare civilian populations from the ravages of war, and all necessary precautions should be taken to avoid injury, loss or damage to civilian populations”.

In a resolution adopted in 1987, the UN Commission on Human Rights called on the Government of El Salvador and the insurgent forces to take all measures to avoid civilian deaths and injuries when conducting military operations, including when landmines were used.

In a resolution adopted in 2004 on Israeli settlements in the occupied Arab territories, the UN Commission on Human Rights expressed its grave concern at:

The continuing high level of casualties on both sides, particularly civilians, and, while recognizing Israel’s right to selfdefence in the face of terrorist attacks against its citizens, urges the Government of Israel to exert maximum effort to avoid civilian casualties and to put a halt to extrajudicial killings, which are contrary to international law.

In a resolution concerning the Gulf War adopted in 1991, the Council of Europe Parliamentary Assembly expressed its full support for the coalition’s action and commended the instructions given to minimize civilian casualties.

During its air campaign against the Federal Republic of Yugoslavia in 1999, NATO frequently stated that it had taken every possible precaution to prevent collateral damage to civilians and civilian objects.

The 26th International Conference of the Red Cross and Red Crescent in 1995 adopted a resolution on protection of the civilian population in period of armed conflict in which it called upon parties to conflict “to take all feasible precautions to avoid, in their military operations, all acts liable to destroy or damage water sources and systems of water supply, purification and distribution solely or primarily used by civilians”.

In its judgment in the Kupreškić case in 2000, the ICTY Trial Chamber stated that Article 57 of the 1977 Additional Protocol I was now part of customary international law, not only because it specified and fleshed out general pre-existing norms, but also because it did not appear to be contested by any State, including those that had not ratified the Protocol.

ICTY, Kupreškićcase, Judgment, 14 January 2000, § 524.

With reference to the Martens Clause, the Trial Chamber held:

The prescriptions of … [Article 57] (and of the corresponding customary rules) must be interpreted so as to construe as narrowly as possible the discretionary power to attack belligerents and, by the same token, so as to expand the protection accorded to civilians.

ICTY, Kupreškić case, Judgment, 14 January 2000, § 525.

International Criminal Tribunal for the former Yugoslavia

In its judgment in the Galić case in 2006, the ICTY Appeals Chamber affirmed:

One of the fundamental principles of international humanitarian law is that civilians and civilian objects shall be spared as much as possible from the effects of hostilities. This principle stems from the principles of distinction and the principle of protection of the civilian population, “the cardinal principles contained in the text constituting the fabric of humanitarian law”, constituting “intransgressible principles of international customary law” [ICJ, Nuclear Weapons Case, § 78; Kordić and Čerkez Appeal Judgement, § 54].

ICTY, Galić case, Judgment on Appeal, 30 November 2006, § 190.

Inter-American Commission on Human Rights

In 1997, in its report concerning the events at La Tablada in Argentina, the Inter-American Commission on Human Rights referred to the obligation to take precautions to avoid or minimize incidental damage. The case dealt with an attack by some 40 persons on military barracks of the armed forces of Argentina and the subsequent counterattack. The Commission found that common Article 3 of the 1949 Geneva Conventions and other rules relevant to the conduct of internal hostilities were applicable. The Commission stated that customary law imposes an obligation to take precautions to avoid or minimize loss of civilian life and damage to civilian property that may occur as a consequence of attacks on military targets.

To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that:

Constant care shall be taken to spare the civilian population, civilian persons and civilian objects. The purpose of such care is primarily to avoid and in any event to minimize civilian casualties and damages (e.g. consideration of populated areas, possibilities of shelter, movements of civilian persons, important civilian objects, different danger according to time of the day).

Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 388; see also § 457.

ICRC

In a Memorandum on the Applicability of International Humanitarian Law sent in 1990 to all States party to the 1949 Geneva Conventions in the context of the Gulf War, the ICRC stated: “The following general rules are recognized as binding on any party to an armed conflict: … all feasible precautions must be taken to avoid loss of civilian life or damage to civilian objects”.

In a communication to the press in 1993, the ICRC enjoined the parties to the conflict in Somalia “to take all feasible precautions to avoid civilian casualties or damage to civilian objects”.

ICRC, Communication to the Press No. 93/17, Somalia: ICRC appeals for compliance with international humanitarian law, 17 June 1993.

ICRC

In 1994, in a Memorandum on Respect for International Humanitarian Law in Angola, the ICRC stated: “All feasible precautions shall be taken to avoid injuries, loss and damage to the civilian population.”

In 1994, in a Memorandum on Compliance with International Humanitarian Law by the Forces Participating in Opération Turquoise in the Great Lakes region, the ICRC stated: “All feasible precautions shall be taken to avoid injury or losses inflicted on the civilian population and damage to civilian objects.”

ICRC, Memorandum on Compliance with International Humanitarian Law by the Forces Participating in Opération Turquoise, 23 June 1994, § II, reprinted in Marco Sassòli and Antoine A. Bouvier, How Does Law Protect in War?, ICRC, Geneva, 1999, p. 1308.

ICRC

In a statement following NATO’s air strikes against the Federal Republic of Yugoslavia in 1999, the ICRC stated: “It is an obligation under international humanitarian law to avoid civilian casualties as far as possible.”

In a communication to the press issued in 2001 after two bombs were dropped on an ICRC compound in Kabul, the ICRC stated: “International humanitarian law obliges the parties to the conflict … to take all the precautions needed to avoid harming civilians.”

In a communication to the press issued in 2001 in the context of the conflict in Afghanistan, the ICRC stated: “In the course of military operations, all parties are obliged to take every feasible precaution to avoid civilian casualties and damage to civilian infrastructure.”

ICRC, Communication to the Press No. 01/47, Afghanistan: ICRC calls on all parties to the conflict to respect international humanitarian law, 24 October 2001.

Rule A8 of the Rules of International Humanitarian Law Governing the Conduct of Hostilities in Non-international Armed Conflicts, adopted in 1990 by the Council of the International Institute of Humanitarian Law, provides:

The general rule to distinguish between combatants and civilians and the prohibition of attacks against the civilian population as such or against individual civilians implies, in order to be effective, that all feasible precautions have to be taken to avoid injury, loss or damage to the civilian population.

The commentary on this rule quotes UN General Assembly Resolution 2675 (XXV) of 1970 and considers that compliance with common Article 3 of the 1949 Geneva Conventions requires, by inference, that precautions in attack be taken. As to which specific precautions have to be taken in non-international armed conflict, the commentary notes that Article 57 of the 1977 Additional Protocol I provides useful guidance on this matter.

International Institute of Humanitarian Law, Rules of International Humanitarian Law Governing the Conduct of Hostilities in Non-international Armed Conflicts, Rule A8 and Commentary, IRRC, No. 278, 1990, pp. 394–395.

International Institute of Humanitarian Law

In its comments on the Declaration of Minimum Humanitarian Standards submitted to the UN Secretary-General in 1995, the International Institute of Humanitarian Law stated: “Any declaration on minimum humanitarian standards should be based on principles … of jus cogens, expressing basic humanitarian consideration[s] which are recognized to be universally binding.” According to the Institute, this includes the principle that “all precautionary measures that are feasible in case of attack should be undertaken, so as to avoid unnecessary injury, loss or damage”.

International Institute of Humanitarian Law, Comments on the Declaration of Minimum Humanitarian Standards submitted to the UN Secretary-General, §§ 1 and 13, reprinted in UN Doc. E/CN.4/1996/80, Report of the Secretary-General prepared pursuant to Commission resolution 1995/29, 28 November 1995, pp. 8–9.

Amnesty International

In its report on the NATO bombings in the Federal Republic of Yugoslavia issued in 2000, Amnesty International concluded that it believed that “in the course of Operation Allied Force, civilian deaths could have been significantly reduced if NATO forces had fully adhered to the laws of war”. The report added that in several cases, “including the attacks on displaced civilians in Djakovica and Koriŝa, insufficient precautions were taken to minimize civilian casualties”. The report further considered that:

Aspects of the Rules of Engagement, specifically the requirement that NATO aircraft fly above 15,000 feet, made full adherence to international humanitarian law virtually impossible. According to NATO officials, changes were made to the Rules of Engagement, including lifting the 15,000 feet rule, following the 14 April 1999 attack near Djakovica and the 30 May 1999 bombing of Varvarin Bridge. These changes were a recognition that existing precautions did not afford sufficient protection to civilians.

Note: For practice concerning the feasibility of precautions to be taken in the use of booby-traps, see Rule 80. For practice concerning the feasibility of precautions in the use of landmines, see Rules81–82. For practice concerning the feasibility of precautions in the use of incendiary weapons, see Rule84.

Argentina’s Law of War Manual (1989) states: “Feasible precautions are those which are practicable or practically possible taking into account all circumstances prevailing at the time, including humanitarian and military considerations.”

Australia’s Defence Force Manual (1994) defines feasible precautions as “precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations”.

Australia’s LOAC Manual (2006) states that “all feasible precautions must be taken to gather relevant intelligence and ensure attacks are directed against military objectives”.

Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 5.1; see also § 2.9.

The manual further states that the duties of Australian Defence Force commanders include “taking all feasible precautions, in the choice of means and methods of attack, to minimise collateral damage”.

Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 5.61.

The manual’s Glossary defines “feasible precautions” as: “Precautions which are practicable or practically possible taking into account all circumstances ruling at the time including humanitarian and military considerations.”

Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, Glossary.

The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).

Canada

Canada’s LOAC Manual (1999), with respect to the standard of care to be applied to target verification, precautions in the choice of means and methods of attack and the assessment of the effects of an attack, states:

Commanders, planners and staff officers will not be held to a standard of perfection in reaching their decisions.

Commanders, planners and staff officers are required to take all “feasible” steps to verify that potential targets are legitimate targets. However, such decisions will be based on the “circumstances ruling at the time”. Consideration must be paid to the honest judgement of responsible commanders, based on the information reasonably available to them at the relevant time, taking fully into account the urgent and difficult circumstances under which such judgements are usually made.

The test for determining whether the required standard of care has been met is an objective one: Did the commander, planner or staff officer do what a reasonable person would have done in the circumstances?

Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, pp. 4-3/4-4, §§ 25–27.

Canada

Canada’s LOAC Manual (2001) states in its chapter on targeting:

418. Standard of care

1. Commanders, planners and staff officers will not be held to a standard of perfection in reaching their decisions.

2. Commanders, planners and staff officers are required to take all “feasible” steps to verify that potential targets are legitimate targets. However, such decisions will be based on the “circumstances ruling at the time”. Consideration must be paid to the honest judgement of responsible commanders, based on the information reasonably available to them at the relevant time, taking fully into account the urgent and difficult circumstances under which such judgements are usually made.

3. The test for determining whether the required standard of care has been met is an objective one: Did the commander, planner or staff officer do what a reasonable person would have done in the circumstances?

Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 418.1–3.

In its glossary, the manual defines “feasible precautions” as “those precautions that are practicable or practically possible taking into account all circumstances ruling at the time including humanitarian and military considerations.”

Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, Glossary, p. GL-6.

Canada

Canada’s Use of Force Manual (2008), in a section entitled “Principles and rules governing the use of force that directly relates to the conduct of armed conflict”, states:

Standard of care. “Feasible” is understood as that which is practicable or practicably possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations. Planners and commanders are expected to act reasonably and in good faith. Decisions concerning the use of force shall be reached on the basis of an assessment of the information reasonably available at the relevant time and that such decisions cannot be judged on the basis of information which has subsequently come to light. Reasonable, good faith efforts must be made to gather intelligence and to review the available intelligence. This standard is one of “reasonableness”, not “perfection”. The test for determining whether the required standard of care has been met is an objective one: “Did the commander, planner or staff officer do what a reasonable person would have done in the circumstances?”

Canada, Use of Force for CF Operations, Canadian Forces Joint Publication, Chief of the Defence Staff, B-GJ-005-501/FP-001, August 2008, § 112.6.

Netherlands

The Military Manual (1993) of the Netherlands states:

The extent to which commanders and their staff can be held accountable for compliance with these rules [on precautions in attack] is determined by three factors: freedom of choice of means and methods, availability of information [and] available time. The higher the level [of command] the stricter the required compliance is.

New Zealand’s Military Manual (1992) emphasizes that the obligation to verify targets, to choose means and methods of attack in order to avoid, and in any event to minimize, civilian losses and damage to civilian objects and the obligation to refrain from deciding to launch an attack which may be expected to cause disproportionate collateral damage is incumbent upon “those who plan or decide upon an attack”. The manual considers that:

This obligation presupposes that the measures are to be taken by a level which possesses a formalised planning process and a substantial degree of discretion concerning methods by which medium-term objectives are to be attained. It is unlikely that the proper level would normally be below a divisional or equivalent level of headquarters.

With respect to the notion of “feasible” precautions, the manual specifies that “feasible” means “that which is practicable or practically possible, taking into account all circumstances at the time, including those relevant to the success of the military operations”.

(1) Do all that is feasible to verify that the designated target is in fact a military objective.

(2) Take all feasible precautions in the selection of weapons and tactics in order to avoid or at any rate minimize the number of deaths and injuries amongst the civilian population and damage to civilian objects.

Those responsible for planning and deciding on attacks must take “all feasible precautions” in the choice of means and methods of attack, with a view to “minimizing” the number of casualties among the civilian population, and “do everything feasible” to verify that the military objectives to be attacked are not protected persons or property.

(b) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.

United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.32; see also § 13.32 (maritime warfare).

The manual further states: “‘Feasible’ means that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.”

United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.32, footnote 191.

Upon accession to the 1977 Additional Protocol I, Algeria stated that the term “feasible” must be interpreted as referring to “precautions and measures which are feasible in view of the circumstances and the information and means available at the time”.

At the CDDH, Austria considered that the precautions envisaged in Article 57 of the 1977 Additional Protocol I

could only be taken at a higher level of military command, in other words by the high command. Junior military personnel could not be expected to take all the precautions prescribed, particularly that of ensuring respect for the principle of proportionality during an attack.

Upon ratification of the 1977 Additional Protocol I, Belgium declared: “In view of the travaux préparatoires … ‘feasible precautions’ [are] those that can be taken in the circumstances prevailing at the moment, which include military considerations as much as humanitarian ones.”

At the CDDH, Canada stated that the word “feasible” when used in the 1977 Additional Protocol I, for example, in Articles 57 and 58, “refers to what is practicable or practically possible, taking into account all circumstances existing at the relevant time, including those circumstances relevant to the success of military operations”.

Upon ratification of the 1977 Additional Protocol I, Canada stated: “The word ‘feasible’ means that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.”

Canada, Reservations and statements of understanding made upon ratification of the 1977 Additional Protocol I, 20 November 1990, § 5.

France

Upon ratification of the 1977 Additional Protocol I, France stated that it considered that the term “feasible” as used in the Protocol meant “that which can be realized or which is possible in practice, taking into account all circumstances ruling at the time, including humanitarian and military considerations”.

France, Reservations and declarations made upon ratification of the 1977 Additional Protocol I, 11 April 2001, § 3.

Germany, Federal Republic of

At the CDDH, the Federal Republic of Germany stated that the word “feasible” in Article 57 of the 1977 Additional Protocol I should be interpreted “as meaning what is practicable or practically possible, taking into account all circumstances at the time, including those relevant to the success of military operations”.

Upon ratification of the 1977 Additional Protocol I, Germany stated that it understood the word “feasible” to mean “that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations”.

Germany, Declarations made upon ratification of the 1977 Additional Protocol I, 14 February 1991, § 2.

India

At the CDDH, India explained its vote on Article 57 of the 1977 Additional Protocol I as follows:

India voted in favour of this article on the clear understanding that it will apply in accordance with the limits of capability, practical possibility and feasibility of each Party to the conflict. As the capability of Parties to a conflict to make distinction will depend upon the means and methods available to each Party generally or in particular situations, this article does not require a Party to undertake to do something which is not within its means or methods or its capability. In its practical application, a Party would be required to do whatever is practical and possible.

Upon ratification of the 1977 Additional Protocol I, Ireland stated: “The word ‘feasible’ means that which is practicable or practically possible, taking into account all circumstances at the time, including humanitarian and military considerations.”

Ireland, Declarations and reservations made upon ratification of the 1977 Additional Protocol I, 19 May 1999, § 6.

Israel

In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated: “In assessing the adequacy of precautions [in attack], under the provisions of [the 1977] Additional Protocol I, the measure is one of ‘feasibility’, not perfection.”

Israel, Ministry of Foreign Affairs, The Operation in Gaza 27 December 2008–18 January 2009: Factual and Legal Aspects, 29 July 2009, § 133.

Italy

At the CDDH, Italy stated that the term “feasible” in Article 57 of the 1977 Additional Protocol I “indicates that the obligations it imposes are conditional on the actual circumstances really allowing the proposed precautions to be taken, on the basis of the available information and the imperative needs of national defence”.

Upon ratification of the 1977 Additional Protocol I, Italy declared: “The word ‘feasible’ means that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.”

Italy, Declarations made upon ratification of the 1977 Additional Protocol I, 27 February 1986, § 2.

Netherlands

At the CDDH, the Netherlands stated:

The word “feasible” when used in Protocol I, for example in Articles 50 and 51 [57 and 58], should in any particular case be interpreted as referring to that which was practicable or practically possible, taking into account all circumstances at the time.

Upon ratification of the 1977 Additional Protocol I, the Netherlands declared: “The word ‘feasible’ is to be understood as practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.”

Netherlands, Declarations made upon ratification of the 1977 Additional Protocol I, 26 June 1987, § 2.

Spain

Upon ratification of the 1977 Additional Protocol I, Spain interpreted the term “feasible” as meaning that “the matter in question is feasible or possible in practice, taking into account all the circumstances prevailing at the time, including humanitarian and military aspects”.

At the CDDH, the representative of Switzerland was critical of the wording of Article 57 of the 1977 Additional Protocol I because it lacked clarity, specifically the words “those who plan or decide upon an attack” in the chapeau of Article 57(2). He stated that this

ambiguous wording might well place a burden or responsibility on junior military personnel which ought normally to be borne by those of higher rank. The obligations set out in [Article 57 of the 1977 Additional Protocol I] could concern the high commands only – the higher grades of the military hierarchy, and it was thus that Switzerland would interpret that provision.

In its declaration made upon signature and in a reservation made upon ratification of the 1977 Additional Protocol I, Switzerland specified that Article 57(2) applied only to the ranks of commanding officers at the battalion or group level and those of higher ranks.

Switzerland, Declaration made upon signature of the 1977 Additional Protocol I, 12 December 1977, § 1; Reservations made upon ratification of the 1977 Additional Protocol I, 17 February 1982, § 1.

In 2005, Switzerland withdrew its reservations to Articles 57 and 58 of the 1977 Additional Protocol I.

Switzerland, Withdrawal of reservations to the 1977 Additional Protocol I, 17 June 2005.

Turkey

At the CDDH, Turkey stated that the word “feasible” in Article 57 of the 1977 Additional Protocol I should be interpreted as “related to what was practicable, taking into account all the circumstances at the time and those relevant to the success of military operations”.

Upon signature of the 1977 Additional Protocol I, the United Kingdom stated: “The word ‘feasible’ means that which is practicable or practically possible, taking into account all circumstances at the time including those relevant to the success of military operations.”

United Kingdom, Declarations made upon signature of the 1977 Additional Protocol I, 12 December 1977, § b.

United Kingdom of Great Britain and Northern Ireland

Upon ratification of the 1977 Additional Protocol I, the United Kingdom stated that it understood the term “feasible” as used in the Protocol to mean “that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations”.

United Kingdom, Reservations and declarations made upon ratification of the 1977 Additional Protocol I, 28 January 1998, § b.

The United Kingdom further stated that the obligation mentioned in Article 57(2)(b) of the 1977 Additional Protocol I only applied to “those who have the authority and practical possibility to cancel or suspend the attack”.

United Kingdom, Reservations and declarations made upon ratification of the 1977 Additional Protocol I, 28 January 1998, § o.

United States of America

At the CDDH, the United States stated:

The word “feasible” when used in draft Protocol I, for example in Articles 50 and 51 [57 and 58], refers to that which is practicable or practically possible, taking into account all circumstances at the time, including those relevant to the success of military operations.

United States, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 241.

Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts

The Rapporteur of the Working Group at the CDDH reported that:

Certain words [in Article 50 (57) of the draft Additional Protocol I] created problems, particularly the choice between “feasible” and “reasonable” … The Rapporteur understands “feasible”, which was the term chosen by the Working Group, to mean that which is practicable, or practically possible. “Reasonable” struck many representatives as too subjective a term.

CDDH, Official Records, Vol. XV, CDDH/III/264/Rev.1, Report to Committee III on the Work of the Working Group submitted by the Rapporteur, 13 March 1975, p. 353.

In its final report to the ICTY Prosecutor in 2000, the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia stated:

The obligation to do everything feasible is high but not absolute … Both the commander and the aircrew actually engaged in operations must have some range of discretion to determine which available resources shall be used and how they shall be used. Further, a determination that inadequate efforts have been made to distinguish between military objectives and civilians or civilian objects should not necessarily focus exclusively on a specific incident. If precautionary measures have worked adequately in a very high percentage of cases then the fact they have not worked well in a small number of cases does not necessarily mean they are generally inadequate.

ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, The Hague, 14 June 2000, § 29.

Eritrea-Ethiopia Claims Commission

In its Western Front, Aerial Bombardment and Related Claims (Eritrea’s Claim) partial award in 2005, the Eritrea-Ethiopia Claims Commission, in considering the necessity of precautions in attack directed at protecting civilians, stated:

The provisions of Geneva [1977 Additional] Protocol I cited by the Parties represent the best and most recent efforts of the international community to state the law on the protection of the civilian population against the effects of hostilities. The Commission … considers them to express customary international humanitarian law. Those provisions may be summarized as follows: they emphasize the importance of distinguishing between civilians and combatants and between civilian objects and military objectives; they prohibit targeting civilians or civilian objects; they prohibit indiscriminate attacks, including attacks that may be expected to produce civilian losses that would be disproportionate to the anticipated military advantage; and they require both attacker and defender to take all feasible precautions to those ends.

To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces the rule that:

The commander shall take all feasible precautions. “Feasible precautions” are those precautions which are practicable, taking into account the tactical situation (that is all circumstances ruling at the time, including humanitarian and military considerations).

Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 365.

Paragraph 46(a) of the 1994 San Remo Manual states: “Those who plan, decide upon or execute an attack must take all feasible measures to gather information which will assist in determining whether or not objects which are not military objectives are present in an area of attack.”

Louise Doswald-Beck (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994, Prepared by international lawyers and naval experts convened by the International Institute of Humanitarian Law, Cambridge University Press, Cambridge, 1995, § 46(a).

All reasonable precautions must be taken to avoid injury, loss or damage to civilians and civilian objects and locations. It is therefore important to obtain accurate intelligence before mounting an attack … Accordingly, the best possible intelligence is required concerning:

The manual also refers to the declarations made by Australia upon ratification of the 1977 Additional Protocol I to the effect that “military commanders and others responsible for planning, deciding upon, or executing attacks, necessarily have to reach their decisions on the basis of their assessment of the information from all sources, which is available to them at the relevant time”.

5.53 … All reasonable precautions must be taken to avoid injury, loss or damage to civilians and civilian objects and locations. It is therefore important to obtain accurate intelligence before mounting an attack …

5.54 Accordingly, the best possible intelligence is required concerning:

• concentrations of civilians;

• civilians who may be in the vicinity of military objectives;

• the nature of built-up areas such as towns, communities, shelters, etc;

• the existence and nature of important civilian objects and specifically protected objects; and

• the environment.

Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 5.53–5.54; see also § 2.9.

The manual also refers to the declarations made by Australia upon ratification of the 1977 Additional Protocol I, to the effect that “military commanders and others responsible for planning, deciding upon, or executing attacks, necessarily have to reach their decisions on the basis of their assessment of the information from all sources, which is available to them at the relevant time”.

Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, Chapter 5, Annex A.

The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).

Benin

Benin’s Military Manual (1995) states: “Military commanders must inform themselves about concentrations of civilian persons, important civilian objects and specially protected facilities, the natural environment and the civilian environment of military objectives.”

Decisions will be based on the “circumstances ruling at the time”. Consideration must be paid to the honest judgement of responsible commanders, based on the information reasonably available to them at the relevant time, taking fully into account the urgent and difficult circumstances under which such judgements are usually made.

Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, pp. 4-3/4-4, § 26.

Canada

Canada’s LOAC Manual (2001) states in its chapter on targeting:

418. Standard of care

1. Commanders, planners and staff officers will not be held to a standard of perfection in reaching their decisions.

2. Commanders, planners and staff officers are required to take all “feasible” steps to verify that potential targets are legitimate targets. However, such decisions will be based on the “circumstances ruling at the time”. Consideration must be paid to the honest judgement of responsible commanders, based on the information reasonably available to them at the relevant time, taking fully into account the urgent and difficult circumstances under which such judgements are usually made.

3. The test for determining whether the required standard of care has been met is an objective one: Did the commander, planner or staff officer do what a reasonable person would have done in the circumstances?

Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 418.1–3.

Canada

Canada’s Use of Force Manual (2008), in a section entitled “Principles and rules governing the use of force that directly relates to the conduct of armed conflict”, states:

Standard of care. … Decisions concerning the use of force shall be reached on the basis of an assessment of the information reasonably available at the relevant time and that such decisions cannot be judged on the basis of information which has subsequently come to light. Reasonable, good faith efforts must be made to gather intelligence and to review the available intelligence.

Canada, Use of Force for CF Operations, Canadian Forces Joint Publication, Chief of the Defence Staff, B-GJ-005-501/FP-001, August 2008, § 112.6.

Central African Republic

The Central African Republic’s Instructor’s Manual (1999) states in Volume 3 (Instruction for non-commissioned officers studying for the level 1 and 2 certificates and for future officers of the criminal police):

To accomplish his mission a military commander needs appropriate intelligence on the enemy and the environment.

To be able to comply with the law of war, intelligence must comprise the following information:

- concentrations of civilian persons;

- the civilian environment;

- types of built-up areas (towns, villages, shelters, etc.);

- the presence and type of major civilian objects, in particular specially protected objects;

Also in Volume 3, the manual states: “Military commanders must inform themselves about concentrations of civilians, important civilian objects and specially protected facilities, the natural environment and the civilian environment of military objectives.”

Croatia, Basic Rules of the Law of Armed Conflicts – Commanders’ Manual, Republic of Croatia, Ministry of Defence, 1992, § 44; see also § 31.

Ecuador

Ecuador’s Naval Manual (1989) states:

The commander must decide, in light of all the facts known or reasonably available to him, including the need to conserve resources and complete the mission successfully, whether to adopt an alternative method of attack, if reasonably available, to reduce civilian casualties and damage.

Commanders are responsible for the consequences for civilians of the military actions they take. They must, prior to any action, obtain a maximum of information concerning the nature and the location of protected objects (medical units, cultural objects, installations containing dangerous forces) and concerning any concentration of civilians.

0511. The circumstances of the time are decisive to whether an object constitutes a military objective. The definition leaves the necessary discretion to the commanding officer. The Dutch Government, in ratifying AP I [1977 Additional Protocol I], has declared in this connection that military commanders who are responsible for carrying out attacks must base their decisions on their evaluation of the information available to them at the time …

0512. …

During the second Gulf War (1990–91), the allied forces identified the Al-Firdus bunker in Baghdad as a military objective. The complex was surrounded by barbed wire barriers and was protected by an armed guard. However, it was not known that the complex was also used as overnight accommodation for Iraqi civilians. Attacks on the bunker complex resulted in 300 civilian fatalities. Given the information available at the time of the attack, the allied forces had firm grounds for classifying the complex as a military objective.

…

0544. If an attack has begun, it may be necessary to give orders to halt or suspend it. Essentially the same rules apply to this as to refraining from attack at the preparatory stage.

The extent to which commanding officers and their staffs, if any, may be bound by these rules depends on three specific factors:

- freedom of choice of means and methods;

- availability of intelligence;

- available time.

The higher the level, the stricter the requirement for the application of the rules …

…

0547. The rules of the law of war on attacking military objectives always apply in toto to the targeting process. This is a cyclical process of identifying and targeting objectives. The targeting process is integral to the command process at all levels. It demands coordination among a number of staff officers, including the legal adviser (staff jurist). The selection of targets gives a general view which forms the basis for intelligence gathering. Target detection is the next stage in the process. Information on the target must be analysed so that the final purpose of targeting can proceed. Finally, the result of targeting must be evaluated, to check whether the desired effect is achieved.

0548. The targeting process has several aspects in the law of war. In the first place, detected targets must be appraised in terms of the law of war. Does the target meet the criteria of a “military objective” (see points 0508 ff.)? The attacker must make sure that the objective to be attacked really is military. Where necessary, intelligence obtained must be verified. Then it is necessary to review how the objective is placed in relation to the civilian population and civilian objects. If necessary, precautionary measures must be taken in the choice of means and methods to be used. The issue in choosing the means is not only whether to use aeroplanes, helicopters or artillery, but also what types of bombs and ammunition to use. The choice of methods concerns, for example, the techniques of attack of fighter aircraft. The timing of the attack is another relevant factor.

The Air Force targeting cycle

The cyclical process of target selection begins with the issue of orders and guidelines by the Joint Force Commander (JFC). During the targeting cycle, the JFC’s objectives and guidelines are supplemented with intelligence and operational information, in order to select specific targets. This also serves to determine the means of achieving the desired effect of targeting. Target selection mechanisms exist at various levels. National governments or higher command headquarters may impose policy directives, restrictions and priorities on the JFC.

Joint Targeting Coordination Board

The JFC may set up a joint targeting coordination board (JTCB) to allow an integrated process of targeting to proceed. Key officers of the operational units and national liaison officers may be added to the JTCB. The JTCB may analyse target information, develop guidelines, set priorities and must compile a list of targets (the Joint Integrated Prioritized Target List or JIPTL).

Stages

The air force targeting cycle consists of six stages:

- Stage 1: coordination with component commanders (sea, land and air). The JFC regularly consults the component commanders on the results of operations, the strategy to follow and future operational plans. The JFC makes his purposes clear, provides general guidelines and determines his criteria for success. In doing so, he describes his intentions in detail and determines or adapts his priorities. The target list, compiled in this round of the coordination, includes the rules of engagement.

- Stage 2: target development. The JFC’s guidelines are used to develop targets. These are selected from the target list, requests for support from component commanders, and intelligence information. The end-product of stage 2 is a prioritized target list, the JIPTL.

- Stage 3: choice of weapons and allocation of resources, based on the JIPTL. The information is developed for approved targets. This includes stating the desired main point of impact (DMPI).

- Stage 4: Plan of implementation. The component commanders may still submit amendments to support requests at this stage. There is a greater need for explicit instructions, the more the participating units are dispersed, are of different nationalities, or originate from different sections of the armed forces.

- Stage 5: Implementation. The units carry out the actions as ordered.

- Stage 6: Combat assessment. This takes place at all levels of the joint force, and is necessary to ascertain the effectiveness of the accomplished missions. A good combat assessment requires a thorough and prompt battle damage assessment (BDA) and weapons effects analysis (WEA). Based on these, a quick decision can be taken to attack the targets further.

Flexible targeting

During execution of the mission (stage 5), it is possible to respond to targets which suddenly emerge, or to a rapidly changing operational situation, resulting in a changed order of priority. For this purpose, a process has been developed called flexible or flex targeting. Flexible targeting uses near-real-time information obtainable from various sources in the field of operations. Thus electronic and optical reconnaissance information can be used for the rapid addition of dynamic targets to the targeting cycle. The observations of forward air controllers (FACs), who may be airborne or attached to land units, may also furnish information about targets. The nearest FAC may be given direct clearance for an approved target. For the air force, the AWACS, in consultation with the FAC, observes which attack aircraft are in the vicinity and available. Depending on proximity to buildings, the probabilities of collateral damage and victims among the civilian population, and the rules of engagement, the FAC decides whether to attack, and which of the available aircraft and weapon systems to use. Both for stage 5 and for flex targeting, pilots on an attack mission may come across information which must be considered in the targeting process.

New Zealand’s Military Manual (1992), with respect to the standard by which to judge the duty to take all feasible precautions, states:

Any subsequent evaluation of conduct must focus on all the circumstances, including humanitarian and military considerations, as they appeared to decision makers at the time, rather than against an absolute standard.

Nigeria’s Military Manual (1994) provides: “The commander, through his intelligence network shall get information on the circumstance of the military relevancy of the zone, specifically protected zones or objects in his area of operations.”

The manual further states: “The commander must draw up a list of all objects in the area under his responsibility in order to verify which of them are military objectives and which of them are protected civilian objects and persons under international humanitarian law.”

The manual also states: “The commander must draw up a list of all objects in the area under his responsibility in order to verify them in accordance with international humanitarian law, distinguishing between military objectives and protected civilians and civilian objects.”

Information is one of the basic pillars on which a commander must base his decisions. A commander needs information about the presence of protected persons and objects in the zone of operation, the nature and location of medical establishments, the location of cultural and religious objects, nuclear power plants, concentrations of civilian persons, movements of populations, etc.

Information is one of the essential pillars on which commanders base their decisions. Commanders must include in their information requirements the presence in the area of protected people and property, the nature and location of medical establishments, the location of cultural and religious property, nuclear power stations, concentrations of civilian population, population movements, etc.

Sweden’s IHL Manual (1991) states that the obligations to take precautions in attack “apply only as far as available resources for collection and processing of information permit”. The manual adds:

A planning commander must, to be able to decide upon an attack, have access to the best possible information about the objective. The decision should be based upon the information available to the commander at the time of deciding.

Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.2.1.5, pp. 70–71.

Togo

Togo’s Military Manual (1996) states: “Military commanders must inform themselves about concentrations of civilian persons, important civilian objects and specially protected facilities, the natural environment and the civilian environment of military objectives.”

The commander must decide, in light of all the facts known or reasonably available to him, including the need to conserve resources and complete the mission successfully, whether to adopt an alternative method of attack, if reasonably available, to reduce civilian casualties and damage.

United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 8.1.2.1.

United States of America

The US Naval Handbook (2007) states:

[T]he commander must decide, in light of all the facts known or reasonably available to him, including the need to conserve resources and complete the mission successfully, whether to adopt an alternative method of attack, if reasonably available, to reduce civilian casualties and damage.

United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 8.3.1.

In 2010, in the Fuel Tankers case, the Federal Prosecutor General at Germany’s Federal Court of Justice investigated whether war crimes or other crimes under domestic law had been committed in the course of an airstrike which was ordered by a colonel (Oberst) of the German armed forces against two tankers transporting fuel for the International Security Assistance Force in Afghanistan stolen by the Taliban near Kunduz and which resulted in the deaths of a number of civilians. The Federal Prosecutor General stated:

Pursuant to § 170 para. 2 StPO [Penal Procedure Code], the investigation proceedings which were initiated by the order of 12 March 2010 against Colonel (Oberst) Klein and Company Sergeant Major (Hauptfeldwebel) Wilhelm due to suspected offences under the VStGB [International Crimes Code] and other offences are to be terminated as a result of the investigations conducted and based on the sources of information set out hereafter and on the reasons given in detail hereafter.

Colonel (Oberst) Klein had no reason to doubt the correctness of the statements by the informant [that no civilians were near the fuel tankers]. …

Lastly, the individual orders by Colonel (Oberst) Klein concerning the arrangement of the military processes also show that he was at all times keen to avoid any civilian victims. Therefore, he ordered that the source was called at least seven times in order to explicitly ask who was present on the ground. He did not give these orders because he had doubts about the credibility of the source’s previous statements. Rather, he endeavoured to constantly double-check his understanding of the situation and to exclude that in the meantime had civilians moved to the tankers. Only after he was sure that the source’s statements corresponded to the video pictures transmitted by the aircrafts and that no further information from other sources was to be expected, did he decide to drop bombs on the fuel tankers.

Upon accession to the 1977 Additional Protocol I, Algeria stated: “To judge any decision, the circumstances, the means and the information available at the time the decision was made are determinant factors and elements in assessing the nature of the said decision.”

Article 57, paragraph 2, of Protocol I will be applied on the understanding that, with respect to any decision taken by a military commander, the information actually available at the time of the decision is determinative.

Austria, Reservations made upon ratification of the 1977 Additional Protocol I, 13 August 1982, § 1.

Austria further stated:

For the purposes of judging any decision taken by a military commander, Articles 85 and 86 of Protocol I will be applied on the understanding that military imperatives, the reasonable possibility of recognizing them and the information actually available at the time that decision was taken, are determinative.

Austria, Reservations made upon ratification of the 1977 Additional Protocol I, 13 August 1982, § 4.

Australia

Upon ratification of the 1977 Additional Protocol I, Australia stated:

In relation to Articles 51 to 58 inclusive it is the understanding of Australia that military commanders and others responsible for planning, deciding upon, or executing attacks, necessarily have to reach their decisions on the basis of their assessment of the information from all sources, which is available to them at the relevant time.

Australia, Declarations made upon ratification of the 1977 Additional Protocol I, 21 June 1991, § 3.

Belgium

Upon ratification of the 1977 Additional Protocol I, Belgium stated:

With respect to Part IV, Section I, of the Protocol, the Belgian Government wishes to emphasize that, whenever a military commander is required to take a decision affecting the protection of civilians or civilian objects or objects assimilated therewith, the only information on which that decision can possibly be taken is such relevant information as is then available and that it has been feasible from him to obtain for that purpose.

Commanders and others responsible for planning, deciding upon or executing necessary attacks, have to reach decisions on the basis of their assessment of whatever information from all sources may be available to them at the relevant time.

It is the understanding of the Government of Canada that, in relation to Articles 48, 51 to 60 inclusive, 62 and 67, military commanders and others responsible for planning, deciding upon or executing attacks have to reach decisions on the basis of their assessment of the information reasonably available to them at the relevant time and that such decisions cannot be judged on the basis of information which has subsequently come to light.

Canada, Reservations and statements of understanding made upon ratification of the 1977 Additional Protocol I, 20 November 1990, § 7.

Egypt

Upon ratification of the 1977 Additional Protocol I, Egypt stated: “Military commanders planning or executing attacks make their decisions on the basis of their assessment of all kinds of information available to them at the time of the military operations.”

Egypt, Declaration made upon ratification of the 1977 Additional Protocol I, 9 October 1992.

Germany, Federal Republic of

At the CDDH, the Federal Republic of Germany stated:

Commanders and others responsible for planning, deciding upon or executing an attack necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time.

In an explanatory memorandum submitted to the German Parliament in 1990 in the context of the ratification procedure of the Additional Protocols, the German Government stated:

Article 57 [of the 1977 Additional Protocol I] contains high requirements for military commanders. They can only evaluate the situation on the basis of facts at their disposal during the planning and execution of an attack. Military commanders cannot be held responsible on the basis of facts they did not know, and could not have known, and which became only clear afterwards.

Germany, Lower House of Parliament, Explanatory memorandum on the Additional Protocols to the Geneva Conventions, BT-Drucksache 11/6770, 22 March 1990, p. 113.

Germany

Upon ratification of the 1977 Additional Protocol I, Germany stated:

It is the understanding of the Federal Republic of Germany that in the application of the provisions of Part IV, Section I, of Additional Protocol I, to military commanders and others responsible for planning, deciding upon or executing attacks, the decision taken by the person responsible has to be judged on the basis of all information available to him at the relevant time, and not on the basis of hindsight.

Germany, Declarations made upon ratification of the 1977 Additional Protocol I, 14 February 1991, § 4.

Ireland

Upon ratification of the 1977 Additional Protocol I, Ireland stated:

In relation to Article 51 to 58 inclusive, it is the understanding of Ireland that military commanders and others responsible for planning, deciding upon, or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is reasonably available to them at the relevant time.

Ireland, Declarations and reservations made upon ratification of the 1977 Additional Protocol I, 19 May 1999, § 9.

Israel

In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated:

For attacks planned in advance, the IDF’s [Israel Defense Forces’] efforts to implement the principles of distinction and proportionality began at the initial planning stage, where each operation and target was considered on an individual basis in order to ensure that it met the requirements of distinction, proportionality and precautions in attack. Targeting decisions which were planned in advance were reviewed by several IDF authorities, including MAG [Military Advocate General’s Corps] officers. The decision-making process involved an in-depth analysis of all relevant considerations, which was based upon the available intelligence, including the operational needs, the anticipated damage to property and sensitive sites, the anticipated harm to civilians, and so on. Whenever possible, the IDF verified the accuracy of the information on the target by cross-checking updated and independent intelligence sources. In this process, the IDF disapproved some, approved others only under certain conditions, such as the time of the attack, the type of weapons used (in order to achieve the military goal while reducing collateral damage), or required precautions prior to attack. On numerous occasions the process resulted in rejection of proposed military operations, where, for example, the available intelligence regarding the proposed target was not sufficiently reliable or up-to-date, or where the likelihood of collateral damage to civilians and their property was considered excessive in relation to the military advantage anticipated.

Israel, Ministry of Foreign Affairs, The Operation in Gaza 27 December 2008–18 January 2009: Factual and Legal Aspects, 29 July 2009, § 251.

Italy

Upon ratification of the 1977 Additional Protocol I, Italy declared:

In relation to Articles 51 to 58 inclusive, the Italian Government understands that military commanders and others responsible for planning, deciding upon or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time.

Italy, Declarations made upon ratification of the 1977 Additional Protocol I, 27 February 1986, § 5.

Netherlands

At the CDDH, the Netherlands stated:

Commanders and others responsible for planning, deciding upon or executing attacks necessarily had to reach decisions on the basis of their assessment of the information from all sources which was available to them at the relevant time.

Upon ratification of the 1977 Additional Protocol I, the Netherlands declared with regard to Articles 51 to 58 inclusive:

It is the understanding of the Government of the Kingdom of the Netherlands that military commanders and others responsible for planning, deciding upon or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time.

Netherlands, Declarations made upon ratification of the 1977 Additional Protocol I, 26 June 1987, § 6.

New Zealand

Upon ratification of the 1977 Additional Protocol I, New Zealand stated:

In relation to Article 51 to 58 inclusive, it the understanding of the Government of New Zealand that military commanders and others responsible for planning, deciding upon, or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is reasonably available to them at the relevant time.

New Zealand, Declarations made upon ratification of the 1977 Additional Protocol I, 8 February 1988, § 2.

Spain

Upon ratification of the 1977 Additional Protocol I, Spain declared with regard to Articles 51 to 58 inclusive:

It is the understanding [of the Spanish Government] that the decision made by military commanders, or others with the legal capacity to plan or execute attacks which may have repercussions on civilians or civilian objects or similar objects, shall not necessarily be based on anything more than the relevant information available at the relevant time and which it has been possible to obtain to that effect.

Military commanders and others responsible for planning, initiating or executing attacks necessarily had to reach decisions on the basis of their assessment of the information from all sources which was available to them at the relevant time.

Upon signing the 1977 Additional Protocol I, the United Kingdom stated:

Military commanders and others responsible for planning, deciding upon or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time.

United Kingdom, Declarations made upon signature of the 1977 Additional Protocol I, 12 December 1977, § d.

The United Kingdom repeated this statement upon ratification of the 1977 Additional Protocol I.

United Kingdom, Reservations and declarations made upon ratification of the 1977 Additional Protocol I, 28 January 1998, § c.

United States of America

In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated:

In reviewing an incident such as the attack of the Al-’Amariyah bunker, the law of war recognizes the difficulty of decision making amid the confusion of war. Leaders and commanders necessarily have to make decisions on the basis of their assessment of the information reasonably available to them at the time, rather than what is determined in hindsight.

United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, p. 626.

Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia

In its final report to the ICTY Prosecutor in 2000, the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia stated:

A military commander must set up an effective intelligence gathering system to collect and evaluate information concerning potential targets. The commander must also direct his forces to use available technical means to properly identify targets during operations.

ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, The Hague, 14 June 2000, § 29.

In its report on the NATO bombings in the Federal Republic of Yugoslavia issued in 2000, Amnesty International, after commenting on the lack of precautions taken by NATO, concluded that “the apparent preeminence given by NATO to intelligence in the planning phase rather than throughout the conduct of an attack, and serious mistakes in intelligence gathering, seem to have led to unlawful deaths”.